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W.I 


E/ERSITY  OF  CALIFORNIA 
AT    LOS  ANGELES 


,^t^^' 


ci^'/Vi  // 


Lt'i.i^ir?y\J, 


ON 


CIVIL    LIBERTY 


SELF-GOVERNMENT. 


BY  FRANCIS  LIEBER,  LL.D., 

C.  M.  FEENCH   INSTITfTE,   ETC. 

AUTHOR  OF  "  POUTICAL  ETHICS;"  "  PRINCTPLES  OF  LEGAL  AND  POUTICAL  INTER PRETATIOSj' 

"ESSAYS  ON  LABOR  AND  PROPERTY;''  "  ON  CRIMINAL  LAW;"  "REMINISCENCES  OF 

KIEUUUR:"  EDITOR  OF  "  PENITENTIARY  SYSTEM  IN  THE  UNITED  STATES 

BY  DE  BEAUMONT  AND  D£  lOCQUEVILLE,"  ETC.  ETC. 


IN    TWO   VOLUMES. 
VOL.   I. 


PHILADELPHIA, 
LIPPINCOTT,  GRAMBO  AND   CO 

MDCCCLIII. 


Entered  according  to  the  Act  of  Congress,  in  tlie  year  1853,  by 

FRANCIS  LIEBEK, 

in  the  OlBce  of  the  Clerk  of  the  District  Court  of  tlie  United  States  in  and  for 
the  Eastern  District  of  Pennsylvania. 


TO 

IT  IS    FORMER    PUPILS 
THESE    VOLUMES 

ARE 

.     INSCRIBED, 
IN    KIND    REMEMBRANCE, 

BY  THE  AUTHOR. 


TO  MY  FORMER  PUPILS. 


Gentlemen, 

There  are  now  in  different  portions  of  tliis  country 
c»  not  far  from  a  thousand  citizens  in  the  formation  of 
"^  whose  minds  I  have  had  some  share  as  a  teacher. 

Many  of  you  are  in  places"  of  authority,  and  I  con- 
&  sider  myself  more  fortunate  than  the  great  founder 
i^  of  political  science  in  this,  that  Aristotle  taught  a 
m  royal  youth  and  future  conqueror,  and  Athenians 
3  indeed,  but  at  a  period  when  the  sun  of  Greece  was 

setting,  while  my  lot  has  been  to  instruct  the  future 
"in  law-makers  of  a  vast  and  growing  commonwealth  in 
g  the  noblest  branches  that  can  be  imparted  to  the 

minds  of  youths  preparing  themselves  for  the  citizen- 
.  ship  of  a  great  republic.  I  hofve  taught  you  in  the 
^  early  part  of  our  history  which  God  has  destined  to 
Q  fill  a  fair  page  in  the  annals  of  man  if  we  do  our 
^  arduous  duty.  If  not,  our  shame  will  be  propor- 
7=  tionate.  lie  never  holds  out  high  rewards  without 
<    corresponding  penalties. 

When  you  were  members  of  this  institution,  I  led 

you  through  the  history  of  man,  of  rising  and  of  cbb- 

1* 

451792 


Vi  TO  MY  FORMER  PUPILS. 

ing  civilization,  of  freedom,  despotism,  and  anarchy, 
I  have  taught  you  how  men  are  destined  to  be  pro- 
ducers and  exchangers,  how  wealth  is  gathered  and 
lost ;  and  how,  -without  it,  there  can  be  no  progress 
and  no  culture.  I  have  studied,  with  many  of  you, 
the  ethics  of  states  and  of  political  man.  You  can 
bear  me  Avitness  that  I  have  endeavored  to  convince 
you  of  man's  inextinguishable  individuality,  and  of 
the  organic  nature  of  society ;  that  there  is  no  right 
without  a  parallel  duty,  no  liberty  without  the 
supremacy  of  the  law,  and  no  high  destiny  without 
earnest  perseverance — that  there  can  be  no  greatness 
without  self-denial.''^ 

Through  you  my  life  and  name  are  linked  to  the 
republic,  and  it  seems  natural  that  I  should  dedicate 
to  you  a  work  intended  to  complete  that  part  of 
my  Political  Ethics  which  touches  more  especially 
on  liberty.  You  will  take  it  as  the  gift  of  a  friend, 
and  will  allow  it  kindly  to  remind  you  of  that 
room  where  you  were  accustomed  to  sit  before  your 
teacher,  vntii  the  busts  of  "Washington,  Socrates, 
Shakspeare,  and  other  laborers  in  the  vineyard  of 
humanity,  looking  down  upon  us. 

The  suffrages  of  your  fellow-citizens  have  carried 


*  For  other  readers  it  may  be  mentioned  that  the  writer  is  Pro- 
fessor of  History  and  of  Political  Philosophy  and  Economy  in  the 
State  College  of  South  Carolina. 


TO  jrY  FORMER  PUPILS.  Vll 

many  of  you  into  the  legislative  halls  of  our  con- 
federated states;  a  few  of  you  are  clothed  with 
their  chief  authority,  or  have  risen  to  the  bench; 
others  have  seats  in  our  congress;  some  have  be- 
come teachers  of  the  young;  some  labor  in  the 
church.  Many  of  you  are  at  home,  and  near  at 
hand ;  some  are  on  the  shores  of  the  Pacific,  or  in 
foreign  lands.  "Wherever  this  book  may  reach  you, 
in  whatever  sphere  of  duty  it  may  find  you  occupied, 
receive  it  as  a  work  earnestly  intended  to  draw 
increased  attention  to  the  great  argument  of  our 
times. 

Our  age  has  added  new  and  startling  commentaries 
to  many  subjects  discussed  in  the  Political  Ethics, 
and  things  there  spoken  of  as  probably  passed  all 
recurrence  have  since  burst  ujDon  an  amazed  world. 
We  would  never  have  supposed  that  socialism  and 
despotism,  the  fatal  negations  of  freedom,  could  have 
been  boldly  proclaimed  in  this  century  as  the  defence 
and  refuge  of  humanity.  We  could  never  have 
believed  possible  such  a  waste  of  national  zeal 
within  so  short  a  period,  as  we  have  witnessed  in 
Italy  and  Germany — countries  that  are  endeared  to 
every  civilized  man. 

A  large  part  of  Europe  is  in  a  state  of  violence, 
either  convulsive  action  or  enforced  repose,  and  one 
of  the  greatest  nations  lias   apparently  once  more 


viii  TO  MY  FOMfER  PUPILS. 

sought  refuge  in  the  reminiscences  of  the  saddest 
times  of  Rome.  Ilistory  often  reaches  our  shores 
from  that  portion  of  the  globe  by  entire  chapters. 
We  are  necessarily  affected  by  new  events  and  new 
ideas,  as  we  in  turn  influence  Europe ;  for  we  are 
of  kindred  blood,  of  one  christian  faith,  of  similar 
pursuits  and  civilization ;  we  have  one  science  and 
the  same  arts;  we  have  one  common  treasure  of 
knowledge  and  power ;  our  alphabet  and  our  numeric 
signs  are  the  same;  and  we  are  members  of  one 
family  of  advanced  nations.  In  such  times  it  be- 
hooves us  to  keep  a  steady  eye  on  all  the  signs  of 
the  times.  Let  us  be  a^ttentive ;  let  us  understand. 
Goethe  says  truly  that  we  must  learn  to  read  occa- 
sionally between  the  lines  of  books  in  order  to 
understand  them.  It  is  a  remark  which  applies  with 
still  greater  force  to  the  pages  of  history  and  those 
that  record  the  changes  of  our  owm  days. 

You  live  in  an  energetic  age.  Men  are  intently 
bent  on  bold  and  comprehensiv©-  ends,  and  mischief 
is  pursued  with  similar  activity.  The  calling  of  our 
inter-oceanic  country  is  a  solemn  one ;  the  youngest 
nation  shaU  bind  the  old  to  the  oldest,  and  the 
Pacific  shall  unite,  though  the  narrow  Bosphorus 
has  long  divided.  Your  institutions  come  from  the 
freest  nation  of  ancient  and  venerable  Europe — 
and  your  duties  are  proportionate  to  the  blessings 


TO  MY  FORMER  PUPILS.  LS 

you  are  enjoying.  The  period  we  live  in,  onr  coun- 
try's position  and  youth,  our  abundance  of  land, 
our  descent,  and  our  freedom — all  call  upon  us,  and 
warn  us. 

If  this  work  then  aid,  in  ever  so  slight  a  degree, 
in  the  discharge  of  these  high  duties ;  if  it  help  to 
show  that  the  political  and  national  Know  Thyself 
is  as  important  as  the  individual ;  if  it  impress  more 
forcibly  upon  your  minds  the  advice  of  Pliny :  Ilabe 
ante  oculos  hanc  esse  terram  quae  nobis  miserit  jura, 
and  give  it  a  meaning  far  wider  than  that  which  the 
Roman  could  give  to  it;  if  it  prove  an  additional 
incentive  to  hold  fast  to  our  liberty  and  to  cidtivate 
it  with  fresh  purity  of  purpose ;  if  it  increase  our 
love  of  sterling  action  and  disdain  of  self-praise ;  if 
it  tend  to  confirm  civil  fortitude,  that  virtue  which 
is  acquired  by  the  habit  of  at  once  obeying  and 
insisting  upon  the  laws  of  a  free  country,  and  shows 
itself  most  elevated  when  it  resists  allurmg  excite- 
ment; if,  in  some  measure,  it  serve  to  restrain  ns 
from  exaggeration  and  judging  by  plausibility — two 
faults  that  are  rifer  in  our  age  than  they  have  been 
almost  at  any  other  period ;  if  it  steady  the  reader 
against  that  enthusiasm  which  Wesley  designates  as 
"  the  looking  to  the  end  without  the  means  ;"*  if  it 


*  General   Minutes,  appended  to  his   edition   of  the   Book  of 
Common  Prayer,  for  the  American  Methodists. 


X  TO  MY  FORMER  PUPILS. 

deepen  our  abhorrence  of  all  absolutism,  whether  it 
be  individual  or  collective,  and  by  whatever  name  it 
may  be  called ;  and  if  it  strengthen  our  conviction 
of  the  dignity  of  man,  too  feeble  to  wield  unlimited 
power  and  too  noble  to  submit  to  it — then  indeed  I 
shall  be  richly  rewarded,  and  shall  not  consider  my- 
self too  bold  if  I  point  to  you  as  Epaminondas,  in 
his  dying  hour,  pointed  to  Leuctra  and  Mantinea  * 

L. 

Columbia,  S.  C,  July,  1853. 


*  Diodor.  Sic.  L.  xv.  c.  87,  G. 


CONTENTS. 


VOLUME    I . 
CHAPTER  I. 

PIQE 
LSTEOUUCTORY 25 

CHAPTER  II. 
Definitions  of  liberty 32 

CHAPTER  III. 

The  meaning  of  civil  liberty  ......         48 

CHAPTER  IV. 

Ancient  and  modern  liberty.     Ancient,  medieval,  and 

MODERN  ST.\TES  ........  58 

CHAPTER  V. 
Anglican  liberty 68 

CHAPTER  VI. 
National  indbpende.nce.     Personal  liberty    ...         73 

CHAPTER  Vll. 
Bail.     Penal  trial  .......         85 


xii  CONTENTS. 


CHAPTER  VII  I. 

PAGE 
Ilir.II  TREASON      ........  100 

CHAPTER  IX. 

Communion.     Locomotion,  emioii.\tion      ....       108 

CHAPTER  X. 
Liberty  of  conscience.     Property.     Supremacy  of  the 


LAW 


118 


CHAPTER  XI. 
Quartering  soldiers.     Tue  army 135 

CHAPTER  XII. 
Petition.     Associ-^tion 144 

CHAPTER  XIII. 
Publicity  ..........       149 

CHAPTER  XIV. 
Supremacy  of  the  law.     Taxation.    Division  of  power  .       158 

CHAPTER  XV. 

Responsible  ministers.     Courts  declaring  laws  uncon- 
stitutional.    Representative  government  .  175 

CHAPTER  XVI. 

Representative  government  continued.     Basis  of  pro- 
perty.    Direct  and  indirect  elections        .        .        .       188 

CHAPTER  XVII. 

Paumamentary   law   and    usage.      The    speaker.     Two 

houses.     The  veto.  ...       199 


CONTENTS.  XIU 


CHAPTER  XVllI. 

PAGE 

Independence  of  the  judiciary,  the  law,  jus,  common 

LAW 220 

CHAPTER  XIX. 

Independence  of  jus,  self-development  of  law  con- 
tinued. Accusatorial  and  inquisitorial  trials.  In- 
dependence OF  THE  judge       ......       234 

CHAPTER  XX. 

Independence  of  jus,  continued.  Trial  by  jury.  The 
Advocate       .........       250 

CHAPTER  XXI. 
Self-government 267 

CHAPTER  XXII. 
American  liberty     .        .        .       ' 277 

CHAPTER  XXII. 

In  what  civil  liberty  consist.^,  proved  by  contraries    .       287 

CHAPTER  XXin. 

Gallican  liberty.     Spre.vding  of  liberty        .        .        .       298 

CHAPTER  XXIV. 

The  institution.     Its  definition.     Its  power  for  good 

AND  evil         .........       320 

CHAPTER  XXVI. 

The  institution  continued.  Institutional  liberty.  In- 
stitutional local  self-government      ....       345 


VOL.  I. — 2 


xiv  CONTiiNTa. 


VOLUME    II. 

CHAPTER  XXVII. 

PAOE 
EiFECTS  AND  USES  OF  INSTITCTIOXAL  SELF-GOVERNMENT  13 

CHAPTER  XXVIII. 


Dangers  and  inconveniences  of  institutional  self-go- 
vernment      ......... 

CHAPTER  XXIX. 

Advantages  of  institutional  government,  farther  con- 
sidered   


29 


43 


CHAPTER  XXX. 

Institutional  government  the  only  government  which 
i'revents  the  growth  of  too  much  power.     liberty, 

wealth  and  LONGEVITY  OF  STATES    .....  57 

CHAPTER  XXXI. 

Insecurity  of  uninstitutional  governments.     Unorgan- 
ized, INARTICULATED  POPUL.\R  POWER        ....  64 

CHAPTER  XXXII. 
Impebatobial  soveeeignty 77 

CHAPTER  XXXni. 

ImPERATORTAL    sovereignty    CONTINUED.       ItS    ORIGIN    AND 

CHARACTER  EXAMINED         .......  86 


CONTENTS.  XV 


CHAPTER  XXXIV. 

P\OF, 

Centralization.     Influkxce  of  capital  citihs  .         it? 

CIIAPTEll  XXXV. 
Vox  PopuLi  Vox  Dei 107 


APPENDIX. 
APPENDIX  I. 

A  PAPER  ON  ELECTIONS,  ELECTION    STATISTICS    AND    GENERAL 

VOTES  OF  YES  OR  NO 123 

APPENDIX  II. 

A  PAPER  ON  THE  ABUSE  OF  THE  PARDONING  POWER     .         144 

APPENDIX  III. 

A  PAPER  ON    Srn.TECTS    CONNECTED  WITH    THE    INQVL^ITORI AL 

TRIAL  AND  THE  LAWS  OF  EVIDENCE     .  .  .  .  .  IGO 

APPENDIX  IV. 
Magna  charta  of  king  John 178 

APPENDIX  V. 
The  PETITION  OF  Rights 202 


XVI  CONTENTS. 


APPENDIX  VI. 

PAGE 

An  act  for  tue  better  secitring  the  liberty  of  the  sub- 
ject, AND  FOR  prevention  OF  IMPRISONMENTS  BEYOND  THE 
SEAS,  COMMONLY  CALLED   "THE  HABEAS  CORPUS  ACT"  .  209 

APPENDIX  VII. 

Bill  of  rights,  passed  1  William  and  Mary,  sess.  2,  ch. 

2,  1G89 221 

APPENDIX  VIII. 

A  declaration  by  the  representatives  OF  THE  United 
States  of  America,  in  congress  assembled  .        .      228 

APPENDIX  IX. 

Articles  of  confederation  and  perpetual  union  between 

the  states     .........       235 

APPENDIX  X. 
Constitution  of  the  United  States  of  America       .         .      249 

APPENDIX  XI. 
French  charter  of  Louis  XVIII.  and  that  adopted  in 

THE  YEAR  1830 .  268 

APPENDIX  XIT. 
Constitution  of  the  French  republic      ....       281 

APPENDIX  XIII. 
The  present  constitution  of  France        ....       301 


COXTEXTS.  XVI 1 


APPENDIX  XIV. 

PAOE 

Report  of  the  French  senatorial  committee  on  the 
petitions  to  change  the  republic  into  an  empire,  in 
November,  1852,  and  the  sexatus  consultum  adopted 
IN  conformity  with  it 325 

APPENDIX  XV. 

Letter  of  the  French  minister  of  the  interior,  ^Ir.  De 
morny,  addressed  to  the  prefects  of  the  depart- 
ments in  the  year  1852  ......       347 


CIVIL    LIBERTY 


SELF-GOVEENMENT 


CHAPTER    I. 

INTRODUCTORY. 

We  live  at  a  period  when  it  is  the  duty  of  reflect- 
ing men  to  ponder  conscientiously  these  important 
(questions:  In  what  does  civil  liberty  consist?  How 
is  it  maintamed  ?  What  are  its  means  of  self-diffu- 
sion, and  under  what  forms  do  its  cliief  dangers 
present  themselves  ? 

Our  age,  marked  by  restless  activity  in  almost  all 
departments  of  knowledge,  and  by  struggles  and 
aspirations  before  unknown,  is  stamped  by  no  cha- 
racteristic more  deeply  than  by  a  desire  to  establish 
or  extend  freedom  among  the  political  societies  of 
mankind.  At  no  previous  period,  ancient  or  mo- 
dern, has  this  impulse  been  felt  at  once  so  strongly 
and  by  such  extensive  numbers.  The  love  of  civil 
liberty  is  so  leading  a  motive  in  our  times,  that  no 
man  who  does  not  understand  what  civil  liberty  is, 
has  accpiired  that  self-knowledge  without  which  we 
do  not  know  where  we  stand,  and  are  supernume- 
raries, or  merely  instinctive  followers  rather  than 
conscious,  working  members  of  our  race,  in  our  day 
and  generation. 

The  first  half  of  our  century  has  produced  more 
VOL.  I. — 3 


26  ON  CIVIL  LIBERTY 

than  three  hundred  political  constitutions,  some  few 
of  substance  and  sterling  worth,  many  transient  like 
ephemeral  beings,  but  all  of  them  testifying  to  the 
endeavors  of  our  age,  and  plainly  pointing  out  the 
high  problem  that  must  be  solved ;  many  of  them 
leaving  roots  in  despite  of  their  short  existence, 
which  some  day  will  sprout  and  prosper.  It  is  in 
history  as  in  nature.  Of  all  the  seeds  that  germi- 
nate, but  few  grow  up  to  be  trees,  and  of  all  the 
millions  of  blossoms,  but  few  ripen  into  fruit. 

Changes,  frequently  far  greater  than  are  felt  by 
those  who  stand  in  the  midst  of  them,  have  taken 
place ;  violent  convulsions  have  shaken  large  and 
small  countries,  and  blood  has  been  shed.  Blood 
has  always  flowed  before  great  ideas  could  settle 
into  actual  institutions,  or  before  the  yearnings  of 
humanity  could  become  realities.  Every  marked 
struggle  in  the  progress  of  civilization  has  its  period 
of  convulsion.  Our  race  is  in  that  period  now,  and 
thus  our  tunes  resemble  the  epoch  of  the  reforma- 
tion. 

Many  who  unreservedly  adhere  to  the  past,  or 
who  fear  its  evils  less  than  those  of  change,  resist 
the  present  longings  of  our  kind,  and  seem  to  forget 
that  change  is  always  going  on,  whether  we  will  or 
not.  States  consist  of  living  beings,  and  life  is  change. 
Others  seem  to  claim  a  right  of  revolution  for  govern- 
ments, denying  it  to  the  people,  and  large  portions  of 
the  people  have  overleaped  civil  liberty  itself.  They 
daringly  disavow  it,  and  pretend  to  believe  that 
they  find  the  solution  of  the  great  problem  of  our 
times  either  in  an  annihilation  of  individuality,  or 


AND  SELF-GOVEEXMKNT.  27 

in  an  apotlieosis  of  individual  man,  and  preach 
communism,  individual  sovereignty,  or  the  utmost 
concentration  of  all  power  and  political  action  in  one 
Caesar,  "Parliamentary  liberty"  is  a  term  sneeringly 
used  in  whole  countries  to  designate  what  they  con- 
sider an  obsolete  encumbrance  and  decaying  rem- 
nants of  a  political  phase  belonging  to  the  past.  The 
representative  system  is  laughed  at,  and  the  idol  of 
monarchical  or  popular  absolutism  is  draped  anew, 
and  worshipped  by  thousands  as  if  it  were  the  latest 
avatar  of  their  political  god. 

We  must  find  our  way  through  these  mazes. 
This  is  one  of  our  duties,  because  it  has  pleased 
Providence  to  cast  our  lot  in  the  middle  of  the 
nineteenth  century,  and  because  an  earnest  man 
ought  to  know,  above  all  social  things,  his  o\n\ 
times. 

Besides  these  general  considerations,  weighty  as 
they  are,  there  are  others  which  ])ress  more  imme- 
diately ujion  ourselves.  Most  of  us  descend  in 
blood,  and  all  of  us  politically,  from  that  nation  to 
which  has  been  assigned  in  common  with  ourselves 
the  high  duty  of  developing  modern  civil  liberty, 
and  whose  manliness  and  wisdom,  combined  with  a 
certain  historical  good  fortune,  which  enabled  it  to 
turn  to  advantage  elements  that  proved  sources  of 
evil  elsewhere,  have  saved  it  from  the  blight  of 
absorbing  centralization.  England  was  the  earliest 
country  to  put  an  end  to  feudal  isolation,  while  still 
retaining  independent  institutions,  and  to  unite  the 
estates  into  a  powerful  general  parliament,  able  to 
protect  the  nation  against  tlic  crown.     There,  too, 


28  ON  CIVIL  LIBERTY 

centuries  ago,  trials  for  high  treason  were  surrounded 
with  pccuhar  safeguards,  besides  those  known  in 
common  criminal  trials,  in  favor  of  the  accused,  an 
exception  the  very  reverse  of  which  we  observe  in 
all  other  European  countries  down  to  the  most 
recent  times,  and  in  most  to  this  day.  In  England, 
we  first  see  applied  in  practice  and  on  a  grand  scale, 
the  idea  which  came  originally  from  the  Netherlands, 
that  liberty  must  not  be  a  boon  of  the  government, 
but  that  government  must  derive  its  rights  from  the 
people.  Here,  too,  the  people  always  clung  to 
the.  right  to  tax  themselves,  and  here,  from  the 
earliest  times,  the  administration  of  justice  has 
been  separated  from  the  other  functions  of  govern- 
ment and  devolved  upon  magistrates  set  apart  for 
this  end,  a  separation  not  3"et  found  in  all  countries.^ 
In  England,  power  of  all  kind,  even  of  the  crown,  has 
ever  bowed,  at  least  theoretically,  to  the  supremacy 
of  the  law,^  and  that  country  may  claim  the  unperish- 


'  I  do  not  only  allude  to  such  bodies  as  the  French  parliaments, 
but  to  the  fact  that  down  to  this  century  the  continental  courts  of 
justice  conducted,  in  innumerable  cases,  what  is  now  frequently 
called  the  administrative  business,  such  as  collecting  taxes,  letting 
crown  domains,  superintending  roads  and  bridges.  The  early 
separation  of  the  English  judge — I  do  not  speak  of  his  independ- 
ence, which  is  of  much  later  date — and  the  earlv,  comparatively 
speaking,  independent  position  of  the  English  church,  seem  to  me 
two  of  the  most  significnnt  facts  in  English  history. 

2  Even  a  Ilcury  the  Eighth  took  care  to  have  fii'st  the  law  changed 
when  it  could  not  be  bent  to  his  tyrannical  acts.  Despots  in  other 
countries  did  not  take  this  trouble,  and  I  do  not  know  whether  the 
liistory  of  any  other  period  impresses  the  student  with  that  pecu- 
liar meaning  which  the  English  word  Law  has  acquired,  more  forci- 
))ly  than  this  very  reign  of  tyranny  and  royal  bloodshed. 


.AJN'D  SELF-GOVERNMEXT,  29 

able  glory  of  having  formed  a  national  representative 
system  of  two  houses,  governed  by  a  parliamentary 
law  of  their  o\v'n,  with  that  important  element,  at  once 
conservative  and  progressive,  of  a  lawful,  loyal  op- 
position. It  is  that  country  which  alone  saved  judi- 
cial and  political  publicity,  when  secrecy  prevailed 
everywhere  else;  which  retained  a  self-developing 
common  law  and  established  the  trial  by  jur}'-.  In 
England,  the  principles  of  self-government  were  not 
swept  away,  and  all  the  chief  principles  and  guaran- 
tees of  her  great  charter  and  the  petition  of  rights 
have  passed  over  into  our  constitutions. 

We  belong  to  the  Anglican  tribe,  which  carries 
Anglican  principles  and  liberty  over  the  globe, 
because  wherever  it  moves  liberal  institutions  and  a 
common  law  full  of  manly  rights  and  instinct  with 
the  princi])le  of  an  expansive  life  accompany  it.  We 
belong  to  that  race  whose  obvious  task  it  is  among 
other  proud  and  sacred  tasks,  to  rear  and  spread  civil 
liberty  over  vast  regions  in  every  part  of  the  earth, 
on  continent  and  isle.  We  belong  to  that  tribe 
which  alone  has  the  word  Sclf-Government.  We 
belong  to  that  nation  whose  great  lot  it  is  to  be 
placed  with  the  full  inheritance  of  freedom  on  the 
freshest  soil,  in  the  noblest  site,  between  Europe  and 
Asia,  a  nation  young,  whose  kindred  countries, 
powerful  in  wealth,  armies,  and  intellect,  are  old. 
It  is  a  period  when  a  peaceful  migration  of  nations, 
similar  in  the  weight  of  numbers  to  the  warlike 
migration  of  the  early  middle  ages,  pours  its  crowd 
into  tlie  lap  of  our  more  fayored  land,  there  to  try 
and  at  times  to  test  to  tlu;  utmost  our  iuslitutums — 

a* 


80  ON  CIVIL  LIBERTY 

institutions  which  are  our  foundations  and  buttresses, 
as  the  law  which  they  embody  and  organize  is  our 
sole  and  sovereign  master. 

These  are  the  reasons  why  it  is  incumbent  upon 
every  American  again  and  again  to  present  to  his 
mind  what  his  own  liberty  is,  how  he  must  guard 
and  maintain  it,  and  why,  if  he  neglect  it,  he  resem- 
bles the  missionary  that  should  proceed  to  convert 
the  world  without  bible  or  prayer-book.  These  are 
the  reasons  why  I  feel  called  upon  to  write  this 
work  in  addition  to  what  I  have  given  long  ago  in 
another  place  on  the  subjects  of  Justice,  Law,  the 
State,  Liberty  and  Right,^  and  to  which,  therefore,  I 
must  refer  my  reader  for  many  prehminary  particu- 
lars ;  and  these,  too,  are  the  reasons  why  I  ask  for 
an  attention,  corresponding  to  the  sense  of  respon- 
sibility with  which  I  approach  the  great  theme  of 
political  vitality — the  leading  subject  of  western 
history*  and  the  characteristic  stamp  and  feature  of 
our  tribe,  our  age,  our  own  country  and  its  calling. 


3  In  my  Political  Ethics. 

■•  I  ask  permission  to  draw  the  attention  of  the  scholar  to  a  sub- 
ject which  appears  to  nie  important.  I  have  used  the  term  AVcst- 
ern  History,  yet  it  is  so  indistinct  that  I  must  explain  what  is 
meant  by  it.  It  ought  not  to  be  so.  I  mean  by  western  history, 
the  history  of  all  historically  active,  non-Asiatic  nations  and  tribes 
— the  history  of  the  Europeans  and  their  descendants  in  other 
parts  of  the  world.  In  the  grouping  and  division  of  comprehen- 
sive subjects,  clearness  depends  in  a  gi*eat  measvu-e  upon  the  dis- 
tinctness of  well-chosen  terms.  Many  students  of  civilization 
have  probably  felt  with  me  the  desirableness  of  a  concise  term, 
which  should  comprehend  within  the  bounds  of  one  word,  capable 
of  furnishing  us  with  an  acceptable  adjective,  the  whole    of  the 


AND  SELF-GOVERNMEXT,  31 

Avcstern  Caucasian  portion  of  mankind — the  Europeans  and  all 
their  descendants  in  whatever  part  of  the  world,  in  America,  Aus- 
tralia, Africa,  India,  the  Indian  Arcliii)clago  and  the  Pacific  Islands. 
It  is  an  idea  which  constantly  recurs,  and  makes  the  necessity  of  a 
proper  and  brief  term  daily  felt.  Bacon  said  that  "the  wise  ques- 
tion is  half  die  science,"  and  may  we  not  add  that  a  wise  division 
and  apt  terminology  is  its  completion  ?  In  my  private  papers  I 
use  the  term  Occidental,  in  a  sufficiently  natural  contradistinction 
to  Oriental.  But  Occidental  like  Western,  indicates  geographical 
position ;  nor  did  I  feel  otherwise  authorized  to  use  it  here.  Eu- 
ropides,  would  not  be  readily  accepted  either.  Japhethian  would 
comprehend  more  tribes  than  we  wish  to  designate.  That  some 
term  or  other  must  soon  be  adopted  seems  to  me  clear,  and  I  am 
really  to  accept  any  expressive  name  formed  in  the  spirit  and  ac- 
cording to  the  taste  of  our  language.  The  cliemist  and  natural 
historian  arc  not  the  only  ones  that  stand  in  need  of  distinct  names 
for  their  sulyects,  but  they  arc  less  exacting  than  scholars. 


32  ON  CIVIL  LIBERTY 


CHAPTER   11. 

DEFINITIONS  OF  LIBERTY. 

A  DISTINGUISHED  writer  has  said  tlmt  every  one 
desires  liberty,  but  it  is  impossible  to  say  wliat  it  is.' 
If  he  meant  by  liberty,  civil  liberty,  and  that  it  is 
impossil)le  to  give  a  definition  of  it,  using  the  term 
definition  in  its  strictest  sense,  he  was  right,  but  he 
was  mistaken  if  he  intended  to  say  that  we  cannot 
state  and  explain  what  is  meant  by  civil  liberty  in 
certain  periods,  by  certam  tribes,  and  that  we  cannot 
collect  something  general  from  these  different  views. 
Civil  liberty  does  not  fare  worse  in  this  respect  than 
all  other  terms  which  designate  the  collective  amount 
of  dift'erent  applications  of  the  same  principle,  such 
as  Fiil^  Arts,  Religion,  Property,  Republic.  The 
definitions  of  all  these  terms  imply  the  use  of  others 
variable  in  their  nature.  The  time  however  is  passed 
when,  as  in  the  age  of  the  scholastic  philosophy,  it 
was  believed  that  evervthing  was  strictly  definable, 
and  must  be  compressed  within  the  narrow  limits  of 
an  absolute  definition  before  it  could  be  entitled  to 


'  I  believe  this  is  said  by  Mr.  de  Chateaubriand  in  his  Etudes 
Historiqucs,  but  I  quote  from  memory,  and  a  liurried  glance  at  the 
work  has  not  brought  again  the  passage  under  my  eye. 


AXD  SELF-GOVERXMEXT.  33 

tlie  dignity  of  a  thorougli  discussion.  The  hope  of 
being  able  absolutely  to  define  things  that  belong 
either  to  the  commonest  life  or  the  higliest  regions, 
betrays  inexperience  and  proves  a  misconception  of 
human  language,  which  itself  is  never  absolute  ex- 
cept in  mathematics.  It  misleads.  Bacon,  so  illus- 
trious as  a  thinker,  has  two  dicta  which  it  will  be 
w^ell  for  us  to  remember  throughout  this  discussion. 
lie  says:  "Generalities  are  barren,  and  the  multi- 
plicity of  single  facts  present  nothing  but  confusion. 
The  middle  principles  alone  are  solid,  orderl}^,  and 
fruitful ;"  and  in  another  part  of  his  immortal  works 
he  states  that  "civil  knowledge  is  of  all  others  the 
most  immersed  in  matter  and  the  hardliest  reduced 
to  axioms."  We  may  safely  add :  "And  expressed  in 
definitions."  It  would  be  easy,  indeed,  and  correct, 
as  far  as  it  would  go,  to  say :  Civil  liberty  is  the  idea 
of  liberty,  which  is  untrammelled  action,  applied  to 
the  sphere  of  politics ;  but  although  this  definition 
might  be  called  "  orderly,"  it  would  certainly  neither 
be  "solid"  nor  "fruitful,"  unless  a  long  discussion 
should  follow  on  what  it  means  in  reality  and  practice. 
This  does  by  no  means,  however,  affect  the  im- 
portance of  investigating  the  subject  of  civil  liberty 
and  of  clearly  presenting  to  our  minds  what  we 
mean  by  it,  and  of  what  elements  it  consists.  Dis- 
orders of  great  public  inconvenience,  even  blood- 
shed and  political  crimes  have  often  arisen  from  the 
fact  that  the  two  sacred  words.  Liberty  and  People 
were  freely  and  i)as.sionately  used  without  a  clear 
and  definite  meaning  being  attached  to  them.  A 
people  that  loves  liberty  can  do  nothing  better  to 


34  ON  CIVIL  LIBERTY 

promote  the  object  of  its  love  tlian  deeply  to  study- 
it,  and  in  order  to  be  able  to  do  this,  it  is  necessary 
to  analyze  and  to  know  the  threads  which  compose 
the  valued  texture. 

In  a  general  way,  it  may  here  be  stated  as  an  ex- 
planation— not  offered  as  a  definition — that  when 
the  term  Civil  Liberty  is  used,  there  is  now  always 
meant  a  high  degree  of  mutually  guaranteed  protec- 
tion against  interference  with  the  interests  and  rights, 
held  dear  and  important  by  large  classes  of  civilized 
men  or  by  all  the  members  of  a  state,  together  with  an 
effectual  share  in  the  making  and  administration  of  the 
laws  as  the  best  apparatus  to  secure  that  protection, 
and  constituting  the  most  dignified  government  of 
men  who  are  conscious  of  their  rights  and  of  the  de- 
stiny of  humanity.  But  what  are  these  guarantees  ? 
these  interests  and  rights  ?  Who  are  civilized  men  ? 
In  what  does  that  share  consist  ?  Which  are  the  men 
that  are  conscious  of  their  rights?  What  is  the 
destiny  of  humanity  ?     Who  are  the  large  classes  ? 

I  mean  by  civil  liberty  that  liberty  which  plainly 
results  from  the  application  of  the  general  idea  of 
freedom  to  the  civil  state  of  man,  that  is,  to  his  rela- 
tions as  a  political  being — a  being  obliged  by  his 
nature  and  destined  by  his  Creator  to  live  in  society. 
Civil  liberty  is  the  result  of  man's  twofold  character, 
as  an  individual  and  social  being,  so  soon  as  both  are 
equally  respected. 

All  men  desire  freedom  of  action.  We  have  this 
desire,  in  some  degree,  even  in  common  with  the 
animal,  where  it  manifests  itself  at  least  as  a  desire 
for  freedom  of  motion.     The  fiercest  despot  desires 


AND  SELF-GOVERNMENT.  35 

liberty  as  mucli  as  the  most  ardent  republican ;  in- 
deed, the  diiliculty  is  tbat  be  desires  it  too  much — 
selfishly,  exclusively.^  He  wants  it  for  himself  alone. 
He  has  not  elevated  himself  to  that  idea  of  granting 
to  his  fellows  the  same  liberty  which  he  claims  for  him- 
self, and  of  desiring  to  be  limited  in  his  own  power 
to  trench  on  the  same  liberty  of  others.  It  is  one 
of  the  greatest  ideas  to  which  man  can  rise.  In  this 
mutual  grant  and  check  lies  the  essence  of  civil 
liberty,  as  we  shall  presently  see  more  fully,  and  in 


*  I  believe  that  tliis  has  never  been  shown  witli  greater  and  more 
truculent  naivetd,  than  by  the  present  King  of  Dahomey  in  the 
letter  he  wrote  to  the  Queen  of  England  in  1852.  Every  case  in 
■which  an  idpa,  bad  or  good,  is  carried  to  a  point  of  extreme  con- 
sistency is  worth  being  noted ;  I  shall  give  therefore  a  part  of  it. 

The  British  government  had  sent  an  agent  to  that  king,  with 
presents,  and  the  direction  to  prevent  him  from  further  trade  in 
elaves;  and  the  king's  answer  contains  the  following  passage : 

"  The  king  of  Dahomey  presents  his  compliments  to  the  queen 
of  England.  The  presents  which  she  has  sent  him  are  very  ac- 
ceptable and  are  good  to  his  face.  When  governor  AVinictt  visited 
the  king,  the  king  toM  him  that  he  must  consult  his  people  before 
he  could  give  a  final  answer  about  the  slave-trade.  lie  cannot  see 
tliat  he  and  his  people  can  do  without  it.  It  is  from  the  slave-trade 
that  he  derives  his  principal  revenue.  This  he  has  explained  in  a 
long  palaver  to  Mr.  Cruikshank.  He  begs  the  queen  of  England 
to  put  a  stop  to  the  slave-trade  everywhere  else,  and  allow  him  to 
continue  it." 

In  another  passage  he  says  : 

"The  king  begs  the  (jueen  to  make  a  law  that  no  ships  be  al- 
lowed to  trade  at  any  place  near  his  dominions  lower  down  the 
coast  than  Whydah,  as  by  means  of  trading  vessels  the  people  are 
getting  rich  and  resisting  his  authority.  He  hopes  the  queen  will 
send  him  some  good  tower  guns  and  blunderbusses  and  plenty  of 
them,  to  enable  liim  to  make  war,"  (which  means  razzais,  in  order 
to  carry  olF  captives  for  the  barracu,  or  slave  market.) 


36  ON  CIVIL  LIBERTY 

it  lies  its  dignity.  It  is  a  grave  error  to  suppose  that 
the  best  government  is  absolutism  with  a  wise  and 
noble  despot  at  the  head  of  the  state.  As  to  conse- 
quences it  is  even  worse  than  absolutism  with  a 
tyrant  at  its  head.  The  tyrant  may  lead  to  reflection 
and  resistance ;  the  wisdom  and  brilliancy,  however, 
of  the  government  of  a  great  despot  or  dictator  de- 
ceives and  unfits  the  people  for  a  better  civil  state. 
This  is  at  least  true  with  reference  to  all  tribes  not 
utterly  lost  in  despotism  as  the  Asiatics  are.  The 
periods  succeeding  those  of  great  and  brilliant  de- 
spots have  always  been  calamitous.'  The  noblest 
human  work — nobler  even  than  literature  and  sci-- 
ence,  is  broad  civil  liberty,  well  secured  and  wisely 
handled.  The  highest  ethical  and  social  production 
of  which  man,  with  his  inseparable  moral,  jural, 
aesthetic  and  religious  attributes  is  capable,  is  the 
comprehensive  and  minutely  organic  self-government 
of  a  free  people ;  and  a  people  truly  free  at  home,  and 
dealing  in  fairness  and  justice  with  other  nations,  is 
the  greatest,  unfortunately  also  the  rarest  subject 
offered  in  all  the  breadth  and  length  of  history. 

In  the  definitions  of  civil  liberty,  which  philoso- 
phers or  publicists  have,  nevertheless,  endeavored  to 
give,  they  seem  to  have  fallen  into  one  or  more  of 
the  following  errors.  Some  have  confounded  liberty, 
the  status  of  the  freeman,  as  opposed  to  slavery,  with 
civil  liberty.  But  every  one  is  aware,  that  while  we 
speak  of  freemen  in  Asia,  meaning  only  non-slaves, 
we  would  be  very  unwilling  to  speak  of  civil  liberty 


I  have  dwelt  on  this  subject  at  length  in  my  Political  Ethics. 


AND  SELF-GOVERNMENT.  37 

in  that  part  of  the  globe.  The  ancients  knew  this 
distinction  perfectly  well.  There  were  the  Spartans, 
constituting  the  ruling  body  of  citizens,  and  enjoying 
what  they  would  have  called,  in  modern  language, 
civil  liberty,  a  full  share  in  the  government  of  the 
polity ;  there  were  helots,  and  there  were  Lacedoe- 
UKjnian  pco})lc,  who  were  subject,  indeed,  to  the 
sovereign  body  of  the  Spartans,  but  not  slaves. 
They  were  freemen,  compared  to  the  helots ;  but 
subjects,  as  distinguished  from  the  Spartans.  This 
suT)jcct  is  very  plain,  but  the  confusion  has  not  only 
frequently  misled  in  times  past,  but  is  actually  going 
on  to  this  day  in  many  countries. 

Others  have  follen  into  the  error  of  substituting  a 
different  word  for  liberty,  and  believed  that  they  had 
thus  defined  it,  while  others  again  have  confounded 
the  means  by  which  liberty  is  secured  by  some,  with 
liberty  itself.  Some,  again,  have  been  led,  unawares, 
to  define  something  wholly  different  from  civil  liberty, 
while  imagining  that  they  were  giving  the  generics 
and  specifics  of  the  subject. 

'^riie  Komaii  lawyers  say  that  liberty  is  the  power 
(authority)  of  doing  that  which  is  not  forbidden  by 
the  law.  That  the  supremacy  of  the  law  and  exclu- 
sion of  arbitrary  interference  is  a  necessary  element 
of  all  liberty,  every  one  will  readily  admit ;  but  if  no 
additional  characteristics  be  given,  we  have,  indeed, 
no  more  than  a  definition  of  the  status  of  a  non-slave. 
It  does  not  state  whence  the  laws  ought  to  come,  or 
what  spirit  ought  to  pervade  them.  The  same  law- 
yers say :  Whatever  may  please  the  ruler  has  the 
VOL.  L — 4 


38  ON  CIVIL  LIBERTY 

force  of  law."*  They  might  have  said  with  equal  cor- 
rectness :  Freeman  is  he  who  is  directly  subject  to 
the  emperor;  slave,  he  who  is  subject  to  the  emperor 
through  an  individual  master.  It  settles  nothing  as 
to  what  we  call  liberty,  as  little  as  the  other  dictum 
of  the  civil  law,  which  divides  all  men  into  freemen 
and  slaves.  The  meaning  of  freeman,  in  this  case,  is 
nothing  more  than  non-slave,  while  our  word  free- 
man, when  we  use  it  in  connection  with  civil  liberty, 
means  not  merely  a  negation  of  slavery,  but  the 
enjojmient  of  positive  and  high  civil  privileges  and 
rights.* 

It  is  remarkable  that  an  English  writer  of  the  last 
century,  Dr.  Price,  makes  the  same  simple  division 
of  slavery  and  liberty,  although  it  leads  him  to  very 
different  results.^  According  to  him,  liberty  is  self- 
determination  or  self-government,  and  every  inter- 
ruption of  self-determination  is  slavery.  This  is  so 
extravagant,  that  it  is  hardly  worth  our  while  to 
dwell  on  it.  Civil  liberty  is  liberty  in  a  state  of 
society,  that  is  in  a  state  of  union  with  equals,  con- 
sequently limitation  of  self-determination  is  one  of 
the  necessary  characteristics  of  civil  liberty.  If  this 
author  did  not  mean  that  the  terms  he  employed 
should  be  taken  strictly,  it  Avould  have  been  better 
to  use  such  terms  as  might  have  been  taken  strictly. 


■•  Quod  principi  placuerit  legis  habet  vigorem. — L.  i.  lib.  i.  tit.  4 
Dig. 

*  Summa  divisio  de  jure  personarum  haec  est,  qnod  omnes 
homines  aut  liberi  sunt  ant  servi. — Inst.  i.  3. 

6  Observations  on  the  Nature  of  Civil  Liberty,  &c.,  by  Richard 
Trice,  D.  D.,  3d  ed.  Lend.  1770. 


AST)  SELF-GOVERXMKXT.  39 

Cicero  says:  Liberty  is  the  power  of  living  as 
thou  wiliest/  This  does  not  apply  to  civil  liberty. 
If  it  was  meant  for  political  liberty,  it  would  have 
been  necessary  to  add :  "  So  far  as  the  same  liberty 
of  others  does  not  limit  your  ovni  living  as  you 
choose."  But  we  always  live  in  society,  so  that  this 
definition  can  have  a  value  only  as  a  most  general 
one,  to  serve  as  a  starting-point,  in  order  to  explain 
liberty  if  applied  to  different  spheres.  Whether  this 
was  the  probable  intention  of  a  practical  Roman,  I 
need  not  decide. 

Libertas  came  to  signify  in  the  course  of  time,  and 
in  republican  Rome,  simply  republican  government, 
abolition  of  royalty. 

The  Greeks  likewise  gave  the  meaning  of  a  dis- 
tinct form  of  government  to  their  word  for  liberty. 
Eleutheria,  they  said,  is  that  polity  in  which  all  are 
in  turn  rulers  and  ruled.  It  is  plain  that  there  is  an 
inkling  of  what  we  now  call  self-government  in  this 
adaptation  of  the  word,  but  it  docs  not  designate 
liberty  as  we  understand  it.  For,  it  may  happen,  and, 
indeed,  it  has  happened  repeatedly,  that  although 
the  rulers  and  ruled  change,  those  that  are  rulers 
are  arbitrary  and  oppressive  whenever  their  turn 
arrives ;  and  no  political  state  of  things  is  more  effi- 
cient in  preparing  the  people  to  pass  over  into  despo- 
tism, by  a  sudden  turn,  than  this  alternation  of  arbi- 
trary rule.  If  this  definition  really  defined  civil 
liberty,  it  would  have  been  enjoyed  in  a  high  degree 


">  Quid  est  libertas  ?    Potesttis  vivemli  ut  velis. — Cic.  Parad.  5, 
1,  01. 


40  ON  CTVIL  LIBERTY 

by  those  communities  in  the  middle  ages,  in  which 
constant  changes  of  factions,  and  persecutions  of  the 
weaker  parties  were  taking  place.  Athens,  when 
she  had  sunk  so  low,  that  the  lot  decided  the  ap- 
pointment to  all  important  offices,  would,  at  that 
very  period,  have  been  freest,  while,  in  fact,  her 
government  had  become  plain  democratic  absolutism, 
one  of  the  very  worst  of  all  governments,  if,  indeed, 
the  term  government  can  be  properly  used  of  that 
state  of  things  which  exhibits  Athens  after  the  times 
of  Alexander,  not  like  a  bleeding  and  fallen  hero,  but 
rather  like  a  dead  body,  on  which  birds  and  vermin 
make  merry.  • 

Not  wholly  dissimilar  to  this  definition,  is  the  one 
we  find  in  the  French  Political  Dictionary,  a  work 
published  in  18^8,  by  leading  republicans,  as  this 
term  was  understood  in  France.  It  says,  under  the 
word  liberty :  "  Liberty  is  equality,  equality  is 
liberty."  If  both  were  the  same,  it  would  be  sur- 
prising that  there  should  be  two  distinct  words. 
Why  were  both  terms  used  in  the  famous  device, 
"  Liberty,  Equality,  Fraternity,"  if  the  first  two  are 
synonvmous,  yet  an  epigrammatic  brevity  was  evi- 
dently  desired?  Napoleon  distinguished  between 
the  two  very  pointedly,  when  he  said  to  Las  Cases, 
that  he  sfave  to  the  Frenchmen  all  the  circumstances 
allowed,  namely,  equality,  and  that  his  son,  had  he 
succeeded  him,  would  have  added  liberty.  The 
dictum  of  Napoleon  is  mentioned  here  merely  to 
show,  that  he  saw  the  difference  between  the  two 
terms.      Equality,  of  itself,  without  many  other  ele- 


AND  SELF-^OVERX^rENT.  41 

ments,  has  no  intrinsic  connection  "witli  liberty.  All 
may  be  equally  degraded,  equally  slavish,  or  equally 
tyrannical.  Equality  is  one  of  the  pervading  features 
of  eastern  despotism.  A  Turkish  barber  may  be 
made  vizier,  far  more  easily  than  an  American  hair- 
dresser can  be  made  a  commissioner  of  roads,  in  the 
United  States,  but  there  is  not  on  that  account  more 
liberty  in  Turkey.  Diversity  is  the  law  of  life, 
absolute  equality  is  that  of  stagnation  and  death.' 

A  German  author  of  a  meritorious  work  begins  it 
with  this  sentence :  "  Liberty — or  Justice,  for  where 
there  is  justice  there  is  liberty,  and  Uberty  is  nothing- 
else  than  justice — has  by  no  means  been  enjoyed 
by  the  ancients,  in  a  liigher  degree  than  by  the 
moderns."^  Either  the  author  means  by  justice 
something  peculiar,  which  ought  to  be  enjoyed  by 
every  one,  and  which  is  not  generally  understood  by 
the  term,  in  which  case  the  whole  sentence  is  nuga- 
tory, or  it  expresses  a  grave  error,  since  it  makes 
equivalents  of  two  things  which  have  received  two 
different  names,  because  they  are  distinct  from  one 
another.  The  two  terms  would  not  even  be  allowed 
to  explain  each  other  in  a  dictionary. 

Liberty  has  not  unfrequently  been  defined  as  con- 
sisting in  the  rule  of  the  majority,  or  it  has  been  said, 
where  the  people  rule  there  is  liberty.  The  rule  of 
the  majority,  of  itself,  indicates  the  power  of  a  cer- 


8  More  lias  been  said  on  this  subject  in  Political  Ethics,  and  we 
shall  return  to  it  at  a  later  period. 

9  Descriptions  of  the  Grecian  Tolities,  by  F.  W.  Tittnian,  Leipsig, 
1822. 

4* 


42  ON  CIVIL  LIBERTY 

tain  body,  but  power  is  not  liberty.  Suppose  the 
majority  bid  3^oa  drink  lieinlock,  is  tliere  liberty  for 
you?  Or  suppose  the  majority  give  away  liberty, 
and  establish  a  despot  ?  We  might  say  with  greater 
truth,  that  where  the  minority  is  protected  although 
the  majority  rule,  there,  probably,  liberty  exists. 
But  in  this  latter  case  it  is  the  protection,  or  in  other 
words,  rights  beyond  the  reach  of  the  majority 
which  constitute  liberty,  not  the  power  of  the  ma- 
jority. There  can  be  no  doubt  that  the  majority 
ruled  in  the  French  massacres  of  the  Protestants ; 
was  there  liberty  in  France  on  that  account?  All 
despotism,  without  a  standing  army,  must  be  sup- 
ported or  acquiesced  in,  by  the  majority.  It  could 
not  stand  otherwise.  If  the  definition  be  urged, 
that  where  the  people  rule  there  is  liberty,  we  must 
ask  at  once,  what  people,  and  how  rule  ?  These  in- 
tended definitions,  therefore,  do  not  define. 

Other  writers  have  said:  "Civil  liberty  consists  in 
the  responsibility  of  the  rulers  to  the  ruled."  It  is 
obvious  that  this  is  an  element  of  all  civil  liberty, 
but  the  question  what  responsibility  is  meant  is  an 
essential  one,  nor  does  this  responsibility  alone  suf- 
fice by  any  means  to  establish  civil  liberty.  The 
dey  of  Algiers  used  to  be  elected  by  the  soldiery, 
who  deposed  him  if  he  did  not  suit,  but  there  was  no 
libertj''  in  Algiers,  not  even  for  the  electing  soldiery. 
The  idea  of  the  best  government,  repeatedly  urged 
by  a  distinguished  French  publicist,  Mr.  Girardin,  is, 
that  all  power  should  be  centered  in  an  elective  chief 
magistrate,  who  by  frequent  election  should  be  made 


AND  SELF-r.OVERXMEXT.  43 

responsible  to  the  people — in  fact,  an  elective  des- 
potism. Is  there  an  American  or  Englishman  living 
who  would  call  such  a  political  monstrosity  freedom, 
even  if  the  elected  despot  would  allow  himself  to  be 
voted  upon  a  second  time  ?  This  conception  of  civil 
liberty  was  the  very  one  which  Louis  Napoleon  ])ub- 
lished  in  his  proclamation,  issued  after  the  coup 
d'etat,  and  in  which  he  tells  the  people  that  he  leaves 
their  fate  in  their  own  hands !  Many  Frenchmen 
voted  for  him  and  for  these  fundamental  principles 
of  a  new  government,  but  those  who  did  so,  voted 
for  him  for  the  very  reason  that  they  considered 
liberty  dangerous  and  inadmissible.  This  definition 
then  is  peculiarly  incorrect. 

Again,  it  has  been  said,  liberty  is  the  power  of 
doing  all  that  we  ought  to  be  allowed  to  do.  But, 
who  allows?  AVhat  ought  to  be  allowed?  Even  if 
these  questions  were  answered,  it  would  not  define 
liberty.  Is  the  imprisoned  homicide  free,  although 
we  allow  him  to  do  all  that  which  he  ought  to  be 
allowed  to  do  ? 

Montesi[uieu  sa^'s:'"  'Thilosophieal  liberty  con- 
sists in  the  exercise  of  one's  will,  or  at  least  (if  we 
must  speak  of  all  systems)  in  the  o])inion  according 
to  which  one  exercises  his  will.  Political  liberty  con- 
sists in  the  security,  or  at  least  m  the  opinion  which 
one  has  of  one's  security."  lie  continues :  "  This 
security  is  never  more  attacked  than  in  public  and 
private  accusations.     It  is  therefore  ujxmi  the  cxeel- 


'0  Esprit  des  Lois  XII.  2.     "Of  tlic  Liberty  of  the  ritizon." 


44  ON  CIVIL  LIIJEllTY 

lence  of  tlie  criminal  laws  that  cliicfly  tlie  liberty  of 
the  citizen  depends."" 

That  security  is  an  element  of  liberty  has  been 
acknowledged;  that  just  penal  laws,  and  a  carefully 
protected  penal  trial,  are  important  ingredients  of 
civil  liberty,  will  be  seen  in  the  sequel ;  but  it  cannot 
be  admitted  that  that  great  writer  gives  a  definition 
of  liberty  in  any  way  adequate  to  the  subject.  We 
ask  at  once  what  security  ?  Nations  frequently  rush 
into  the  arms  of  despotism  for  the  avowed  reason  of 
finding  security  against  anarchy.  What  else  made 
the  Eomans  so  docile  under  Augustus?  Those 
French  who  insist  upon  the  "necessity"  of  Louis 
Napoleon,  do  it  on  the  avowal  that  anarchy  was 
impending,  but  no  one  of  us  will  say  that  Augu^us 
was  the  harbinger  of  freedom,  or  that  the  French 
emperor  allows  the  people  any  enjoyment  of  liberty. 
If,  however,  Montesquieu  meant  the  security  of  those 
liberties  which  Algernon  Sidney  meant  Avlien  he 
said:  "The  liberties  of  nations  are  from  God  and 
nature,  not  from  kings" — in  that  case  he  has  not 
advanced  the  discussion,  for  he  does  not  say  in  what 
they  consist. 

If,  on  the  other  hand,  the  penal  law,  in  which  it 
must  be  supposed  Montesquieu  included  the  penal 
trial,  be  made  the  chief  test  of  liberty,  we  cannot  help 
observing  that  a  decent  penal  trial  is  a  discovery  in 
the  science  of  government  of  the  most  recent  date. 
The  criminal  trials  of  the  Greeks  and  Eomaus,  and 


"  He  goes  on  treating  liberty  in  a  similar  manner ;  for  instance, 
at  the  beginning  of  Chapter  IV.  of  tlie  same  work. 


AND  SELF-GOVERNMENT.  45 

of  the  middle  ages  were  deficient  both  in  protecting 
the  accused  and  society,  and  witliout  trespassing  we 
may  say  that  in  most  cases  they  were  scandalous. 
Must  we  then  say,  according  to  Montesquieu,  that 
liberty  never  dwelt  in  those  states?'* 

To  pass  from  a  great  ^vriter  to  one  much  his 
inferior,  I  shall  give  Dr.  Paley's  definition  of  civil 
liberty.  He  says :  "  Civil  liberty  is  the  not  being  re- 
strained by  any  law  but  what  conduces  in  a  greater 
degree  to  the  public  welfare.'"''  I  should  hardly 
have  mentioned  this  definition,  but  that  the  work 
from  which  it  is  taken  is  still  in  the  hands  of  thou- 
sands, and  that  the  author  has  obviously  shaped  and 
framed  it  with  attention.  Who  decides  on  what 
public  welfare  demands  ?  Is  that  no  miportant  item 
of  civil  liberty?  Who  makes  the  law?  Suffice  it 
to  say  that  the  definition  may  pass  for  one  of  a  good 
government  in  general,  that  is,  one  which  befits  the 
given  circumstances,  but  it  does  not  define  civil 
liberty.     A  Titus,  a  benevolent  Kussian  czar,  a  wise 


"^  That  a  writer  of  Montesquieu's  sagacity  and  regard  for  liberty 
sliould  Lave  thus  insufficiently  defined  so  gi-eat  a  subject,  is  nothing 
more  than  what  frequently  happens.  No  man  is  always  himself, 
and  Bishop  Berkeley  on  Tar  Water  represents  a  whole  class  of  weak 
tlioughtH  by  strong  minds.  I  do  not  only  agree  with  what  sir 
James  Mackintosh  says  in  praise  of  Montes(|uieu,  in  his  Discourse 
on  the  Study  of  the  Law  of  Nature  and  Nations;  but  I  would  add, 
that  no  person  can  obtain  a  correct  view  of  the  history  through 
which  political  liberty  has  been  led  in  Europe,  or  can  possess  a 
clear  insight  into  many  of  its  details,  without  making  himself  ac- 
quainted with  the  Spirit  of  Laws.  His  work  has  doubtless  been  of 
great  influence. 

'"  Beginning  of  the  fifth  cli.ipter  of  Paley's  rolitioal  riiih'sophy. 


46  0>r  CIVIL  LIBERTY 

dictator,  a  conscientious  sultan,  a  kind  master  of 
slaves,  ordain  no  restraint  but  wliat  they  tliink  is 
required  by  the  general  welfare ;  yet  to  say  that  the 
Bomans  under  Titus,  the  Russian,  the  Asiatic,  the 
slave  is  on  that  account  in  the  enjoyment  of  civil 
liberty,  is  such  a  perversion  of  language  that  we 
need  not  dwell  upon  this  definition,  surprising  even 
in  one  who  does  not  generally  distinguish  himself  by 
unexceptionable  definitions.  We  almost  feel  tempted 
to  close  this  list  of  definitions  with  the  words  with 
which  Lord  Eussell  begins  his  chapter  on  liberty. 
He  curtly  says :  "  Many  definitions  have  been  given 
of  liberty.     Most  of  these  deserve  no  notice.'"" 

Whatever  the  various  definitions  of  civil  liberty 
may  be,  we  take  the  term  in  its  usual  adaptation 
among  modern  civilized  nations,  in  which  it  always 
means  liberty  in  the  political  sphere  of  man.  We 
use  it  in  that  sense  in  which  freemen,  or  those  who 
strive  to  be  free,  love  it,  in  which  bureaucrats  fear  it 
and  despots  hate  it,  in  a  sense  which  comprehends 
what  has  been  called  public  liberty,  and  personal 
liberty,  and  in  conformity  vnth  which  all  those  who 
cherish  and  those  who  disrelish  it,  distinctly  feel  that, 
whatever  its  details  may  be,  it  always  means  a  high 
degree  of  untrammelled  political  action  in  the 
citizen,  and  an  acknowledgment  of  his  dignity  and 


'*  Lord  John  Russell's  History  of  the  English  Government  and 
Constitution,  second  ed.,  London,  1825.  This  prominent  and  long- 
tried  statesman  distinguishes,  on  page  15,  between  civil,  personal, 
and  political  liberty ;  but  even  if  he  had  been  more  successful  in 
this  distinction  than  he  seems  to  me  actuallj-  to  have  been,  it  would 
not  be  necessary  to  adopt  it  for  our  present  purpose. 


AND  SELF-GOVERNMENT.  47 

his  important  rights,  by  the  government  which  is 
SLilDJcct  to  his  positive  and  organic,  not  only  to  his 
roundabout  and  vague  influence. 

This  has  always  been  felt ;  but  more  is  necessary. 
We  ought  to  know  our  subject.  We  must  answer, 
then,  this  question  :  In  what  does  civil  liberty  truly 
consist  ? 


48  ON  CIVIL  LIBERTY 


CUAPTER    III. 

THE  MEANING  OF  CIVIL  LIBEllTV. 

Liberty,  in  its  absolute  sense,  means  the  faculty 
of  willing  and  tlie  power  of  doing  what  has  been 
willed,  without  influence  from  any  other  source,  or 
from  without.  It  means  self-determination;  unre- 
strainedness  of  action. 

In  this  absolute  meaning,  there  is  but  one  free 
being,  because  there  is  but  one  being  whose  Mill  is 
absolutely  independent  upon  any  influence,  but  that 
which  he  wills  himself,  and  whose  power  is  adequate 
to  his  absolute  will — who  is  almighty.  Liberty, 
self-determination,  unrestrainedness  of  action,  as- 
cribed to  any  other  being,  or  applied  to  any  other 
sphere  of  action,  has  necessarily  a  relative  and 
limited,  therefore  an  approximative  sense  only. 
With  this  modification,  however,  we  may  apply  the 
idea  of  freedom  to  all  spheres  of  action  and  reflec- 
tion.* 


'  It  will  be  observed  that  the  terms  Liberty  and  Freedom  are 
used  here  as  synonjmcs.  Originally  they  meant  the  same.  The 
German  Freiheit  (literally  Frechood)  is  still  the  term  for  oiu'  Liberty 
and  Freedom ;  but  as  it  happened  in  so  many  cases  in  our  language 
where  a  Saxon  and  Latin  term  existed  for  the  same  idea,  each 
acquired  in  the  course  of  time  a  different  shade  of  the  original 


AXD  SELF-GOVERNMENT.  49 

If  we  apply  the  idea  of  self-determination  to  the 
sphere  of  politics,  or  to  the  state,  and  the  relations 


meaning,  eitlier  permanently  so,  or  at  least  under  certain  circum- 
stances. Liberty  and  Freedom  arc  still  used  in  many  cases  as 
synonymous.  We  speak  of  the  freedom  as  well  as  the  liberty  of 
human  agency.  It  cannot  be  otherwise,  since  we  have  but  one 
adjective,  namely  Free,  although  we  have  two  nouns.  When  these 
arc  used  as  distinctive  terms,  freedom  means  the  general,  liberty, 
the  specific.  We  say :  The  slave  was  restored  to  freedom  ;  and  we 
speak  of  the  liberty  of  the  press,  of  civil  liberty.  Still,  no  orator 
or  poet  would  hesitate  to  say,  freedom  of  the  press  if  rhetorically 
or  metrically  it  shoidd  suit  bcttei*.  As  in  almost  all  cases  in  Avhich 
we  have  a  Saxon  and  a  Latin  term  for  the  same  main  idea,  so  in 
this,  the  first,  because  the  older  and  original  term,  has  a  fuller, 
more  compact,  and  more  positive  meaning;  the  latter,  a  more 
pointed,  abstract  or  scientific  sense.  This  appears  still  more  in  the 
verbs  to  free,  and  to  liberate.  The  G  erman  language  has  but  one  word 
f(,ir  our  Freedom  and  Liberty,  namely  Freihcit ;  and  Freithuni 
(literally  freedom)  means  in  some  portions  of  Germany  an  estate  of 
a  Freilierr  (baron).  In  Dutch,  the  word  Vryheid,  (literally  free- 
hood)  is  freedom,  liberty,  while  Vrydoni  (literally  freedom)  means 
a  privilege,  an  exemptiou  from  burdens.  This  shows  still  more 
that  these  words  meant  originally  the  same. 

The  subject  of  liberty  will  occupy  us  throughout  this  work,  and 
is  of  itself  a  subject  of  such  magnitude,  that  we  may  well  allow 
ourselves  the  time  of  reflecting  for  a  moment  on  the  terms  which 
man  has  employed  to  designate  this  great  concept. 

The  Greek  word  eleutheros,  free,  properly  means,  he  who  can 
walk  where  he  likes.  See  Passow  ad  vcrbum,  'EXiu^t^o;  and 
'E^;tfljteat.  The  Latin  liber  is  believed  to  be  derived  from  the  same 
root  with  the  Gothic  Lib  (in  German  Lcib,  body,  connected  with 
the  Gothic  Liban,  our  lire,  the  German  Icbcn),  so  that  lilcr  would 
have  meant  originally,  he  who  has  his  own  body,  whose  body  docs 
not  belong  to  some  one  else.  It  is  natural  that  freedom  appeared 
to  the  ancients,  first  of  all,  as  a  contradistinction  to  shivery,  or  as 
its  negation.  This  is  not  quite  dissimilar  to  the  fact  that  most 
languages  designate  the  state  of  purity  by  an  adjective,  which 
indicates  a  negation  of  the  state  of  guilt.  We  say  innocent,  the 
VOL.  I. — 5 


50  ox  CIVIL  LIBEIITY 

which  subsist  between  it  and  the  indivifbial,  and 
between  different   states,   we  must   remember  tliat 


negation  of  noccnt,  gtiilty;  as  if.  we  w«re  cnllinf;  light  undark- 
ness.  The  guilt,  the  crime  strikes  first,  and  from  it  are  abstracted 
the  negations  unguilt,  innocence.  If  all  were  free,  and  if  freedom 
had  never  been  Tiolated,  we  would  probably  have  no  word  for 
freedom. 

That  Body  is  taken  in  this  instance  to  designate  independence, 
with  which  the  ideas  of  individuality  and  humanity  are  closely  con- 
nected, is  in  conformity  with  the  history  of  all  terms  of  abstraction. 
The  sensuous  world  furnishes  man  with  the  original  term  and  idea, 
which  the  advancing  intellect  refines  and  distils.  Nor  can  it  sur- 
prise us  who  to  this  day  say  somebody,  everybody,  for  some  person, 
every  man.  Who  does  not  think  .at  once  of  Burns's  lovely,  "Gif  a 
body  meet  a  body,"  where  body  is  used  for  human  individual?  At 
the  time  of  writing  this  note,  I  met  with  this  question,  in  a  Scot- 
tish penal  trial :  Was  that  arsenic  for  a  beast  or  a  body  ? — Burton's 
Criminal  Trials,  vol.  ii.  page  59. 

Here,  then,  body  is  taken  so  distinctly  for  man  that  it  is  contra- 
distinguished to  beast.  In  the  same  natural  manner,  it  may  come 
to  signify  man,  not  with  reference  to  his  intellect,  but  in  connection 
with  liberty,  as  contradistinguished  to  a  man-thing,  i.  e.  slave. 

At  a  later  period,  the  soul  comes  to  designate  individuals,  as  we 
say  in  statistical  accounts,  so  many  souls,  for  so  many  persons. 

The  word  Free  is  one  of  the  oldest  words  with  which  we  are  ac- 
quainted. We  find  free,  fry,  fryg,  vry,  in  many  languages,  and  Hesi- 
chius  gives  as  a  Lydian  word  Bi^lya- — tov  eXeuSepo'v,  from  which  the  name 
of  the  Phrj-gians  was  probably  derived.  It  is  probably  connected 
with  several  jirepositions  and  verbs  which  we  find  in  many  lan- 
guages, but  this  is  not  the  place  to  carry  the  etymological  inquiry 
any  farther.  It  may  be  added,  however,  that  through  all  the  an- 
cient Teutonic  languages  there  is  running  a  root  Fr  and  Pr,  with 
words  derived  from  it,  which  indicate  protection,  pax,  foedus. 
Frihals  or  Frijhals  is  the  ancient  High  German  for  a  protected 
man,  a  free-man,  a  non-slave  man.  How  this  root  again  is  con- 
nected with  the  Gothic  frijan,  frion  for  loving,  kissing  (hence  our 
word  friend),  and  the  Sanscrit  pri,  which  means  exhUarare.  amare, 
cannot  be  settled  here.    I  would  refer  the  reader  for  more  informa- 


AND  SELF-GOVERNMENT.  51 

the  following  points  are  necessarily  involved  in  the 
comprehen.^ive  idea  of  the  State: 

The  state  is  a  society,  or  union  of  men — a  sove- 
reign society  and  a  society  of  human  beings,  with  an 
indelible  character  of  individuality.  The  state  is 
moreover  an  institution  which  acts  through  govern- 
ment, a  contrivance  which  holds  the  power  of  the 
whole,  opposite  to  the  individual.  Since  the  state 
then  implies  a  society  which  acknowledges  no  supe- 
rior, the  idea  of  self-determination  applied  to  it  means 
that,  as  a  unit  and  opposite  to  other  states,  it  be 
independent,  not  dictated  to  by  foreign  governments, 
nor  dependent  upon  them  any  more  than  itself  has 
freely  assented  to  be,  by  treaty  and  upon  the  princi- 
ples of  common  justice  and  morality,  and  that  it  be 
allowed  to  rule  itself,  or  that  it  have  what  the  Greeks 
chiefly  meant  by  the  word  autonomy.^     The  term 


tion  on  this  subject  to  L.  Diefenbacb's  Comparative  Dictionary  of 
tlie  Gotliic  Language,  a  German  work,  and  to  Grimm's  German 
Dictionary,  which,  indeed,  I  have  not  yet  been  able  to  see ;  but 
the  name  of  Grimm  is  so  well  known  to  the  Avorld  as  that  of  the 
undisputed  higliest  authority  on  all  questions  of  Teutonic  etymology 
that  the  author  docs  not  hesitate  to  direct  his  reader  to  a  work 
which  he  himself  has  not  yet  examined. 

It  is  a  cua-ious  fact  that  the  Armenians  use,  for  liberty,  a  com- 
pound of  uik'n,  self,  and  uh/chutioolzoon,  dominion,  sovereignty.  So 
that  the  Armenians  actually  liave  our  noble  word,  self-government. 
^^y  learned  friend,  the  Rev.  J.  W.  Miles,  of  Charleston,  to  wlumi  1 
owe  this  contribution  and  much  information  on  the  Asiatic  terms 
for  liberty,  adds,  "  I  think  a  word  of  similar  composition  is  usc<l  in 
the  Georgian  for  liberty." 

2  Atonomeia  is  literally  translated  Self-Governmont,  and  un- 
doubt<'illy  suggesteil  the  ICiiglish  word  to  our  carl}'  divines.  Do- 
naldson,  in    Ills    Greek  dictionary,  gives   Sclf-(ioveriinient    as    tlie 


52  ON  CIVIL  LIBERTY 

state,  at  the  same  time,  means  a  society  of  men,  that 
is  of  beings  with  individual  destinies  and  responsibi- 
lities from  which  arise  individual  rights,^  that  show 
themselves  the  clearer  and  become  more  important,  as 
man  advances  in  political  civilization.  Since,  then, 
he  is  obliged  and  destined  to  live  in  society,  it  is 
necessary  to  prevent  these  rights  from  being  en- 
croached upon  by  his  associates.  Since,  however,  not 
only  the  individual  rights  of  man  become  more  dis- 
tinctly developed  with  advancing  civilization,  but 
also  his  social  character  and  all  mutual  dependence, 
this  necessity  of  protecting  each  individual  in  his 
most  important  rights,  or,  which  is  the  same,  of  check- 
ing each  from  interfering  with  each,  becomes  more 
important  with  every  progress  he  makes. 

Lastly,  the  idea  of  the  state  involving  the  idea  of 
government,  that  is  of  a  certain  contrivance  with 
coercing  power  superior  to  the  power  of  the  indi- 
vidual, the  idea  of  self-determination  necessarily  im- 


English  equivalent  for  the  Greek  Autonomy,  but  as  it  has  been 
stated  above,  it  meant  in  reality  independence  upon  other  states,  a 
non-colonial,  non-provinciiU  state  of  things.  I  beg  tlie  reader  to 
remember  this  fact ;  for  it  is  significant  that  the  term  autonomy 
retained  with  the  Greeks  this  meaning,  facing  as  it  were  foreign 
states,  and  that  Self-Government,  the  same  word,  has  acquired  with 
ourselves,  chiefly,  or  exclusively  a  domestic  meaning,  facing  the 
relations  in  which  the  individual  and  home  institutions  stand  to  the 
state  which  comprehends  them. 

'  The  fact  that  man  is  in  his  very  essence  at  once  a  social  being 
and  an  individual ;  that  the  two  poles  of  sociality  and  individualism 
must  forever  determine  his  political  being,  and  that  he  cannot  give 
up  either  the  one  or  the  otlier,  with  the  many  relations  flowing 
from  this  fundamental  point,  form  the  main  subject  of  the  first  vo- 
lume of  my  Political  Ethics,  to  which  I  would  refer  the  reader. 


AND  SELF-GOVERNilENT.  53 

plies  protection  of  the  individual  against  encroacliing 
power  of  the  government,  or  checks  against  govern- 
ment interference.  And  again,  society  as  a  unit 
having  its  objects,  ends,  and  duties,  liberty  includes 
a  proper  protection  of  government,  as  well  as  an 
efficient  contrivance  to  coerce  it  to  carry  out  the 
views  of  societ}',  and  to  obtain  its  objects. 

We  come  thus  to  the  conclusion  that  liberty  ap- 
plied to  political  man,  practically  means,  in  the 
main,  protection  or  checks  against  undue  interfe- 
rence, whether  this  be  from  individuals,  from  masses, 
or  from  government.  The  highest  amount  of  liberty 
comes  to  signify  the  safest  guarantees  of  undisturbed 
legitimate  action,  and  the  most  efficient  checks  against 
undue  interference.'*  Men,  however,  do  not  occupy 
themselves  with  tliat  whicli  is  unnecessary.  Breath- 
ing  is   unquestionably  a  right  of  each  individual. 


■•  It  is  interesting  with  reference  to  the  nbove  subject,  that  the 
Teutonic  frei  and  free  comes  fi'om  the  same  root/r,  with  fridu  and 
frida  (in  modern  German  Friede),  that  is  peace,  to  wjiich  alhisiou 
Jias  been  made  in  tlie  preceding  note.  Fridon  in  old  Saxon  meant 
to  protect,  to  make  secure.  Tlie  old  Norse  his /rJt/o  (frid/io)  which 
the  lexicographer  renders  by  (uliis,  forti.i,  mansuetus,  fonnosas.  In 
some  parts  of  Germany  and  Switzerland  Friede  (peace)  still  means 
fence,  that  is  protection.  In  the  middle  ages//-ff/«s  nndfreda  meant 
tlie  legal  protection  within  a  certain  district.  The  word  goes 
through  the  Franconian,  Alcmannian,  Longobardian  and  other  law.", 
and  reminds  us  of  the  English  term,  the  king's  peace.  Freiburg 
meant  originally  a  town  and  district  within  which  certain  protection 
and  security  was  to  be  found.  Witiiout  multiplying  tiie  instances, 
which  might  be  done  ad  infinitum,  the  fact  that  in  the  Teutonic 
languages  the  term  freedom  is  of  the  same  root  with  that  for  legal 
security  and  protection,  or  rather  that  the  latter  lias  passed  over 
to  tliat  of  liberty,  is  well  established  and  full  of  meaning. 

r.* 


54  ON  CIVIL  LIBERTY 

proved  by  liis  existence ;  but,  since  no  poAver  lias  yet 
interfered  with  the  undoubted  right  of  respiration, 
no  one  has  ever  thought  it  necessary  to  guarantee 
this  elementary  riglit.  We  advance  then  a  step 
farther  in  practically  considering  civil  liberty,  and 
find  that  it  chiefly  consists  in  guarantees  (and  corre- 
sponding checks)  of  those  rights  which  experience 
has  proved  to  be  most  exposed  to  interference,  and 
which  men  hold  dearest  and  most  important. 

This  latter  consideration  adds  a  new  element. 
Freemen  protect  their  most  important  rights,  or 
those  rights  and  those  attributes  of  self-determina- 
tion, which  they  hold  to  be  most  essential  to  their 
idea  of  humanity;  and  as  this  very  idea  of  humanity 
comprehends  ])artly  some  ideas  common  to  men 
of  all  ages,  when  -once  conscious  of  their  human- 
ity, and  partly  other  ideas  which  differ  according 
to  the  view  of  humanity  itself,  which  may  prevail 
at  different  periods,  we  shall  find,  in  examining  the 
great  subject  of  civil  freedom,  that  there  are  certain 
permanent  principles  met  with  wherever  we  discover 
any  aspiration  to  liberty;  and  that,  on  the  other 
hand,  it  is  rational  to  speak  of  ancient,  medieval,  or 
modern  liberty,  of  Greek  or  Eoman,  Anglican  and 
Galilean,  pagan  and  christian,  American  and  English 
liberty.  Certain  tribes  or  nations,  moreover,  may 
actually  aim  at  the  same  objects  of  liberty,  but  may 
have  been  led,  in  the  course  of  their  history,  and 
according  to  the  variety  of  circumstances  produced 
in  its  long  course,  to  different  means  to  obtain  similar 
ends.  So  that  this  fiTct,  likewise,  would  evolve  dif- 
ferent systems  of  civil  liberty,  either  necessarily  or 


AND  SELF-GO VERXMEXT.  55 

only  incidentally  so.  Politics  are  like  architecture, 
■\vhicli  is  determined  by  the  objects  the  builder  has 
in  view,  the  materials  at  his  disposal,  and  the  desire 
he  feels  of  manifesting  and  revealing  ideas  and  aspi- 
rations in  the  material  before  him.  Civil  liberty  is 
the  idea  of  liberty  in  connection  with  politics,  and 
must  necessarily  partake  of  the  character  or  inter- 
twine itself  with  the  whole  system  of  politics  of  a 
given  nation. 

This  view,  however  correct,  has,  nevertheless,  mis- 
led many  nations.  It  is  true,  that  the  sj'stem  of  poli- 
tics must  adapt  itself  to  the  materials  and  destinies  of  a 
nation ;  but  this  very  truth  is  frequently  perverted  by 
rulers  who  wish  to  withhold  liberty  from  the  people, 
and  do  it  on  the  plea  that  the  destiny  of  the  nation 
is  conquest,  or  concentrated  action  in  different 
spheres  of  civilization,  with  which  liberty  would  in- 
terfere. In  the  same  manner  are,  sometimes,  whole 
portions  of  a  people,  or  even  large  majorities  misled. 
They  seem  to  think  that  there  is  a  fate  written  some- 
where beyond  the  nation  itself,  and  independent  of 
its  own  morality,  to  which  everything,  even  justice 
and  liberty  must  be  sacrificed.  It  is  at  least  a  very 
large  portion  of  the  French  that  thus  believes  the 
highest  destiny  of  France  to  consist  in  ruling  as  the 
first  power  in  Europe,  and  who  openly  say,  that  every- 
thing must  bend  to  this  great  destiny.  So  are  many 
among  us,  who  seem  to  believe  that  the  highest  destiny 
of  the  United  States,  consists  in  the  extension  of  her 
territory — a  task  in  which,  at  best,  we  can  only  be 
imitators,  while,  on  the  contrary,  our  destiny  is  one 
of  its  own,  and  of  a  substantive  character. 


56  ON  CIVIL  LIBEIITY 

At  tlic  present  stage  of  our  inquiry,  however,  we 
have  not  time  to  occupy  ourselves  witli  these  aberra- 
tions. 

All  that  is  necessary  to  vindicate  at  present  is, 
that  it  is  sound  and  logical  to  speak  of  eternal  prin- 
ciples of  liberty  and  at  the  same  time  of  ancient  and 
modern  liberty,  and  that  there  may  be,  and  often 
must  be  various  systems  of  civil  liberty,  though  they 
need  not,  on  that  account,  differ  as  to.  the  intensity 
of  liberty  which  they  guarantee. 

That  Civil  Liberty,  or  simply  Liberty,  as  it  is 
often  called,  naturally  comes  to  signify  certain  mea- 
sures, institutions,  guarantees  or  forms  of  govern- 
ment, by  which  people  secure  or  hope  to  secure 
liberty,  or  an  iinim})cded  action  in  those  civil  matters 
or  those  spheres  of  activity  which  they  hold  most 
important,  appears  even  from  ancient  writers.  When 
Aristotle,  in  his  work  on  politics  speaks  of  liberty, 
he  means  certain  peculiar  forms  of  government,  and 
he  uses  these  as  tests,  to  decide  whether  liberty  does 
or  does  not  exist  in  a  polity,  which  he  contemplates 
at  the  time.  In  the  Latin  language  Libertas  came 
to  signify  what  we  call  republic,  or  a  non-regal  go- 
vernment. Respublica  did  not  necessarily  mean  our 
republic,  as  our  term  Commonwealth  may  mean  a 
republic — a  commonwealth  man  meant  a  republican 
in  the  Ensrlish  revolution* — but  it  does  not  necessa- 


5  The  republic — if,  indeed,  Ave  can  say  that  an  actual  and  bona 
fide  republic  ever  existed  in  England — was  called  tlie  slate  in  con- 
tradistinction to  the  regal  government.  During  the  restoration 
under  Cliarles  the  Second  men  woiild  say:  "In  the  times  of  the 
state,"  nieaninf?  the  interval  between  the  death  of  the  first  Charles 


AND  SELF-GOVERXMEXT.  57 

rily  do  so.  When  we  find  in  Quintilian  tiie  expres- 
sion :  Asserere  Uherlatem  re/p^/^/^'cfe,  "\ve  clearly  sec  that 
respublica  does  not  necessarily  mean  republic,  but 
only  when  the  commonwealth,  the  system  of  public 
affairs,  was  what  we  now  call  a  republic.  Since  this, 
however,  actually  was  the  case  during  the  best  times 
of  Roman  history,  it  was  natural  that  respublica  re- 
ceived the  meaning  of  our  word  republic  in  most 
cases. 

The  term  liberty  had  the  same  meaning  in  the 
middle  ages,  wherever  popular  governments  sup- 
planted monarchical,  often  where  they  superseded 
aristocratic  polities.  Liberty  and  republic  became 
in  these  cases  synonymous." 


and  the  resumption  of  government  hy  the  second.  The  term  State 
acquired  first  this  peculiar  meaning  under  the  Presbyterian  govern- 
ment. 

^  It  is  in  a  simihir  sense  that  Frciligratli,  a  modern  German  poet, 
begins  one  of  his  most  fervent  songs  with  the  line :  "  Die  Freiheit 
ist  die  Republik,"  that  is :  Freedom  is  the  Kepublic. 


58  ON  CIVIL  LIBERTY 


CHAPTEE   IV. 

ANCIENT  AND  MODERN  LIBERTY.— ANCIENT,  MEDIEVAL, 
AND  MODERN  STATES. 

That  -^-hicli  tlie  ancients  understood  by  liberty 
differed  essentially  from  wbat  we  moderns  call  civil 
liberty.  Man  appeared  to  tbe  ancients  in  his  highest 
and  noblest  character,  when  they  considered  hun  as 
a  member  of  the  state  or  as  a  political  being.  Man 
could  rise  no  higher  in  their  view.  Citizenship  was 
in  their  eyes  the  highest  phase  of  humanity.  Aris- 
totle says  in  this  sense,  the  state  is  before  the  indi- 
vidual. With  us  the  state,  and  consequently  the 
citizenship,  remain  means,  all-important  ones,  indeed, 
but  still  means  to  obtain  still  higher  objects,  the 
fullest  possible  development  of  humanity  in  this 
w^orld  and  for  the  world  to  come.  There  was  no 
sacrifice  of  individuality  to  the  state,  too  great  for 
the  ancients.  The  greatest  political  philosophers  of 
antiquity  unite  in  holding  up  Sparta  as  the  best 
regulated  commonwealth — a  communism  in  which 
the  indi\ddual  was  sacrificed  in  such  a  degree,  that 
to  the  most  brilliant  pages  of  all  history  she  has 
contributed  little  more  than  deeds  of  bravjsry  and 
saliant  anecdotes  of  stoic  heroism.     Greece  has  re- 


AND  SELF-GOVERNMENT.  59 

kindled  modern  civilization,  in  the  restoration  of 
letters.  The  degenerate  keepers  of  Greek  literature 
and  art,  who  fled  from  Constantinople  when  it  Avas 
conquered  by.  the  Turks,  and  settled  in  Western 
Europe,  were  nevertheless  the  harbingers  of  a  new 
era.  So  great  was  Grecian  knowledge  and  civiliza- 
tion even  in  this  weakened  and  crippled  state !  Yet 
in  all  that  intellectuality  of  Greece  which  lighted  our 
torch  in  the  fifteenth  and  sixteenth  centuries,  there 
is  not  a  single  Lacedajmoniau  element. 

riato,  when  he  endeavors  to  depict  a  model  re- 
public, ends  with  giving  us  a  communism,  in  which 
even  individual  marriage  is  destroyed  for  his  higher 
classes.^ 

We,  on  the  other  hand,  acknowledge  individual 
and  primordial  rights,  and  seek  one  of  the  highest 
aims  of  civil  liberty  in  the  most  efficient  protection 
of  individual  action,  endeavor,  and  rights.  I  have 
dwelled  upon  this  striking  and  instructive  difference 
at  length  in  my  work  on  Political  Ethics,^  where  I 
have  endeavored  to  support  the  opinion  here  stated 
by  historical  facts  and  passages  of  the  ancients.  I 
]inist  rcl'er  the  reader,  thereto  re,  to  tliat  ])art  of  the 
work ;  but  there  is  a  passage  which  seems  to  me  so 
important  for  the  present  inquiry,  as  well  as  for 


'  It  is  a  striking  fact  that  nearly  all  political  writers  who  have 
indulgcil  in  creating  Utopias — I  believe  all  without  exception — have 
followed  so  closely  the  ancient  writers,  that  they  rose  no  higher 
than  to  connuunism.  It  may  bo  owing  iu  part  to  the  fjict,  that 
these  Avriters  composed  their  works  soon  after  the  restoration  of 
letters,  when  the  ancients  naturally  ruled  the  minds  of  men. 

2  Chapter  XIII.  of  the  second  book. 


60  ON  CIVIL  LIBERTY 

anotlier  which  will  soon  occupy  our  attention,  that, 
unable  to  express  myself  better  than  I  have  done  in 
the  mentioned  work,  I  must  beg  leave  to  insert  it 
here.     It  is  this  : 

"  We  consider  the  protection  of  the  individual  as 
one  of  the  chief  subjects  of  the  whole  science  of  poli- 
tics. The  7io\iti,x'i^  erttatrjfiTj^  or  political  science  of  the 
ancients,  does  not  occupy  itself  with  the  rights  of  the 
individual.  The  ancient  science  of  politics  is  what 
we  would  term  the  art  of  government,  that  is,  "the 
art  of  regulating  the  state,  and  the  means  of  pre- 
serving and  directing  it."  The  ancients  set  out  from 
the  idea  of  the  state,  and  deduce  every  relation  of  the 
individual  to  it  from  this  first  position.  The  moderns 
acknowledge  that  the  state,  however  important  and 
indispensable  to  mankind,  however  natural,  and 
though  of  absolute  necessity,  still  is  but  a  means  to 
obtain  certain  objects,  both  for  the  individual  and  for 
society  collectively,  in  which  the  individual  is  bound 
to  live  by  his  nature.  The  ancients  had  not  that 
which  the  moderns  understand  by  jus  naturale,  or  the 
law  which  flows  from  the  individual  rights  of  man  as 
man,  and  serves  to  ascertain  how,  by  means  of  the 
state,  those  objects  are  obtained  which  justice  de- 
mands for  every  one.  On  what  supreme  power  rests, 
what  the  extent  and  limitation  of  supreme  power 
ought  to  be,  according  to  the  fundamental  idea  of  the 
state,  these  questions  have  never  occupied  the  ancient 
votaries  of  political  science. 

"Aristotle,  Plato,  Cicero,  do  not  begin  with  this 
question.  Their  works  are  mainly  occupied  with  the 
discussion  of  the  question,  Who  shall  govern?     The 


AND  SELF-GOVERNMENT.  Gl 

safety  of  tliG  state  is  tbeir  principal  problem;  the 
safety  of  the  individual  is  one  of  our  greatest.  No 
ancient,  therefore,  doubted  the  extent  of  supreme 
j)0\ver.  If  the  people  possessed  it,  no  one  ever  hesi- 
tated in  allowing  to  them  absolute  power  over  every 
one  and  everything.  If  it  passed  from  the  people  to 
a  few,  or  was  usurped  by  one,  they  considered,  in 
many  cases,  the  acquisition  of  power  imla-svful,  but 
never  doubted  its  unlimited  extent,  Ilence,  in  Greece 
and  Home  the  apparently  inconsistent,  yet,  in  reality, 
natu]\al  sudden  transitions  from  entirely  or  partially 
])0[ndar  governments  to  absolute  monarchies;  while, 
in  modern  states,  even  in  the  absolute  monarchies, 
there  exists  a  certain  acknowledgment  of  a  [)ublic 
law  of  individual  rights,  of  the  idea  that  the  state, 
after  all,  is  for  the  protection  of  the  individual,  how- 
ever ill-conceived  the  means  to  obtain  this  object  may 
be. 

"  The  idea  that  the  Eoman  people  gave  to  them- 
selves, or  had  a  right  to  give  to  themselves,  their 
emperors,  Avas  never  entirely  abandoned,  though  the 
soldiery  arrogated  to  themselves  the  power  of  electing 
the  masters.  .  .  .  Yet  the  moment  that  the  emperor 
was  established  on  his  throne,  no  one  doubted  his 
right  to  the  absolute  supreme  power,  with  whatever 
violence  it  was  used.^ 


'  This  was  written  in  the  year  1837.  Since  then,  events  liuve 
occurred  in  Friince  wliicli  may  well  cause  the  reader  to  reflect 
whether,  after  all,  the  antlior  was  entirely  correct  in  drawing  this 
peculiar  line  between  antii|uity  and  modern  times.  All  I  can  say 
iu  this  place  is,  that  the  political  moveuieut.ij  iu  France  resemble  the 
VOL.  I. — (3 


62  ox  CIVIL  LIBERTY 

"Liberty,  with  the  ancients,  consisted  materially 
in  the  degree  of  })articipation  in  government,  '  where 
all  are  in  turn  the  ruled  and  the  rulers,'  Liberty, 
with  the  moderns,  consists  less  in  the  forms  of  au- 
thority, which  are  with  tliem  but  means  to  obtain 
the  protection  of  the  individual,  and  the  undisturbed 
action  of  society  in  its  minor  and  larger  circles. 
'E-Kiv^spid,  indeed,  frequently  signifies  with  the  Greek 
political  writers,  equality ;  that  is  absolute  equality, 
and  loofiyj,  equality  as  well  as  iuv^tpla,  are  terms 
actually  used  for  democracy,"*  by  which  was  under- 
stood what  we  term  democratic  absolutism,  or  un- 
limited, despotic  power  in  the  demos,  which,  prac- 
tically, can  only  mean  the  majority,  without  any 
guarantee  of  any  rights.  It  was,  therefore,  perfectly 
consistent  that  the  Greeks  aimed  at  perfect  liberty  in 
perfect  equality,  as  Aristotle  states,  not  even  allow- 
ing a  difference  on  account  of  talent  and  virtue ;  so 
that  they  give  the  rtd%oi  the  lot,  as  the  true  charac- 
teristic of  democracy.  They  were  consistently  led  to 
the  lot;  in  seeking  for  liberty,  that  is  the  highest 
enjoyment  and  manifestation  of  reason  and  will,  or 
self-determination — they  were  led  to  its  very  nega- 
tion and  annihilation — to  the  lot,  that  is  to  chance. 


dire  imperial  times  of  Rome  just  so  fur  as  tlic  French,  or  rather  the 
Napolcoiiists  among  them,  step  out  of  the  broad  path  of  modern 
political  civilization,  actually  courting  a  comparison  ■with  imperial 
Home,  and  that  tliis  renewed  imperial  period  will  bo  nothing  but  a 
phase  in  the  long  cliain  of  political  revulsions  and  ruptiu-es  of 
France.  The  phase  'will  not  be  of  long  duration ;  and,  after  it  will 
have  passed,  it  will  serve  as  an  additional  proof  of  our  position. 
"  Plato,  Gorg.  39. 


AND  SELF-GOVERNMENT.  63 

Not  only  Avere  magistrates,  but  even  generals  and 
orators  determined  by  lot."* 

Had  tlie  ancients  possessed  other  free  states  than 
city-states,  they  Avould  have  been  forced  out  of  this 
position,  but  there  were  no  states  in  antiquity,  if 
we  take  tlie  term  in  the  adaptation  in  which  we  use 
it,  when  we  mean  sovereign  political  societies  spread- 
ing over  extensive  territories  and  forming  an  organic 
legal  whole.  Even  the  vast  monajrchies  of  ancient 
Asia  were  conglomerated  conquests  with  much  of 
what  has  just  been  called  a  city-state.  Nmeveh, 
Babylon,  were  mighty  cities  that  swayed  over  vast 
dominions  as  mistresses,  but  did  not  form  part  of  a 
general  State  in  the  modern  term. 

In  the  middle  ages  liberty  appears  in  a  different 
phase.  The  Teutonic  spirit  of  individual  inde])cnd- 
cnce  was  one  of  the  causes  which  led  to  the  feudal 
s}' stem,  and  frequently  prospered  under  it  in  rank  wil- 
derness. There  was  no  state  proper  in  the  middle 
ages ;  the  feudal  system  is  justly  called  a  system. 
It  was  no  state ;  and  medieval  liberty  appears  in  the 
shape  of  liberties,  of  franchises,  singly  chartered, 
separately  conquered,  specifically  arrogated — each 
society  or  party  obtaining  as  much  as  possible,  un- 
mindful of  others,  and  each  denying  to  others  as 
much  as  might  be  conveniently  done.  The  term 
freedom,  therefore,  came  distinctly  to  signify  in  the 
middle  ages,  not  exactly  the  amount  of  free  action 
allowed  to  the  citizen  or  guaranteed  to  the  person 
who  enjoyed  it,  bnt  the  exemption  from  luirdens  and 


6  For  the  cvideuce  and  proof  I  nui.st  rel'er  to  the  original. 


64  ox  CIVIL  LIBERTY 

duties  imposed  upon  others,  or  exacted  in  former 
times.  Liberty  liad  not  yet  acquired  a  substantive 
meaning,  although,  it  need  not  be  mentioned  that 
then  as  well  as  in  ancient  times,  the  principle  which 
made  noble  hearts  throb  for  liberty  and  independence, 
was  the  same  that  has  made  the  modern  martyrs  of 
liberty  mount  the  scaffold  with  confidence  and  reli- 
ance on  the  truth  of  their  cause. 

I  am  here  again  obliged  to  refer  to  the  Political 
Ethics,  where  I  have  treated  of  this  peculiarity  of  the 
middle  ages  in  the  chapter  on  the  duties  of  the 
modern  representative  contradistinguished  to  the 
medieval  deputy. 

The  nearer  we  approach  to  modern  times  the  more 
clearly  we  perceive  two  movements,  which,  at  first 
glance,  would  appear  to  be  destructive  the  one  to 
the  other.  On  the  one  hand  states,  in  the  present 
sense  of  the  term,  are  formed.  There  is  a  distinct 
period  in  the  history  of  our  race,  which  may  be  aptly 
called  the  period  of  nationalization.  Tribes,  frag- 
ments, separate  political  societies  are  united  into 
nations,  and  politically  they  appear  more  and  more 
as  states.  It  is  one  of  the  many  fortunate  occur- 
rences which  have  fallen  to  England  in  the  course  of 
her  histor}^,  that  she  became  nationalized  at  a  com- 
paratively very  early  period.  The  feudal  system 
was  introduced  at  a  late  period,  and  as  a  royal 
measure.  The  kin^  made  the  Norman -Enslish 
nobility.  The  nobility  did  not  make  the  king.  The 
English  nobility,  therefore,  could  not  resist  the  na- 
tional movement  and  consolidation  of  the  people  into 
a  nation,  as  it  did  on  the  continent,  and,  the  crown 


AND  s?:lf-govekxment.  65 

thus  not  being  oljligcd  to  gather  all  possil:)le  strength, 
in  order  to  be  able  to  subdue  the  baronial  power, 
had  not  the  opportunit}'^  to  pass  over  into  the  con- 
centrated j)rincipate,  which  was  one  of  the  political 
phases  in  every  other  part  of  Europe.^ 

On  the  other  hand,  we  observe  that  the  priceless 
individual  value  which  Christianity  gives  to  each 
human  being,  by  making  him  an  individually  respon- 
sible being,  with  the  highest  duties  and  the  highest 
privileges ;  together  with  advancing  civilization,  in 
a  great  measure  produced  by  itself — the  Teutonic 
spirit  of  personal  independence,  connected  not  a 
little  with  the  less  impressionable,  and,  therefore, 
more  tenacious,  and  sometimes  dogged  character  of 
the  Teutonic — all  these  combinedly,  developed  more 
and  more  the  idea  of  individual  rights,  and  the  desire 
of  protecting  them. 

These  two  facts  have  materially  influenced   the 


*  The  history  of  no  nation  reminds  the  student  so  frequently  of 
tlie  fact  that  His  ways  are  not  our  ways,  as  that  of  England. 
Many  events  which  have  brought  ruin  elsewhere,  served  in  the  end 
to  obtain  greater  liberty  and  a  higher  nationality.  The  fact  that 
the  Norman  nobility  in  England  was  the  creature  of  the  king — for 
this,  doubtless,  it  was,  although  they  came  as  Norman  noblemen  to 
the  field  of  Hastings — is  one  of  these  rcmarkjiblc  circumstances. 
The  English  civil  wars,  the  fact  that  most  of  Englanil's  monarchs 
have  been  indifFcrcnt  persons,  and  that  but  one  truly  great  man  has 
been  among  her  kings,  the  inhospitable  climate,  which  was  treated 
by  the  people  like  a  gauntlet  thrown  down  by  Nature,  and  they 
developed  that  whole  world  of  domestic  comfort  and  well-being, 
known  nowhere  else,  and  of  such  important  influence  upon  all  lier 
political  life  ;  her  limited  territory ;  her  repeated  change  of  lan- 
guage ;  her  eaily  conquests — these  are  some  items  of  n  li.-^t  wiiich 
might  easily  be  extended. 

6* 


66  ON  CIVIL  LIBERTY 

development  of  motlern  liberty,  tliat  liberty  ■wliich 
"\vc  call  our  own.  The  progress  Ave  value  so  mucli 
was  greatly  retarded  on  the  continent  by  an  historical 
process  which  was  universal  among  the  nations  •  of 
Europe,  excepting  those  of  Sclavonic  origin,  because 
they  had  not  yet  entered  the  lists  of  civilization. 

The  feudal  system,  of  far  greater  power  on  the 
continent  than  in  England,  interfered  with  the  pro- 
cess of  nationalization  and  the  formation  of  states 
proper.  The  people  had  risen  to  a  higher  position,  a 
higher  consciousness  of  rights,  and  the  inhabitants  of 
the  cities  had  generally  found  the  baronial  element 
hostile  to  them.  The  consequence  was,  that  the 
crowns  and  the  people  united  to  break  the  power  of 
the  baron.  But  in  the  same  degree  as  the  struggle 
was  tenacious,  and  the  crown  had  used  stronger 
power  to  subdue  the  feudal  lord,  it  found  itself  un- 
shackled when  the  struggle  was  over,  and  easily 
domineered  over  both,  the  people  and  the  lord.  Then 
came  the  time  of  absorbing  regal  power,  of  centrali- 
zation and  monarchical  absolutism,  of  government- 
states,  as  Niebuhr  calls  them.  The  liberties  of  the 
middle  ages  were  gone ;  the  principles  of  self-govern- 
ment were  allowed  to  exist  nowhere;  and  we  find,  at 
the  present  period  only,  the  whole  of  the  European 
continent,  with  the  exception  of  Eussia,  as  a  matter 
of  course,  engaged  in  an  arduous  struggle  to  regain 
liberty,  or  rather  to  establish  modern  freedom. 
Everywhere  the  first  ideas  of  the  new  liberty  were 
taken  from  England,  and,  later,  from  the  United 
States.  The  desire  of  possessing  a  well-guaranteed 
political  liberty  and  enjoyment  of  free  action,  was 


AND  SELF-GOVERXMEXT.  G7 

kindled  on  the  European  continent  by  the  exam}»lc 
of  Engkuid.  The  course  which  wc  t)bservc  in  France, 
from  Montesquieu,  Avho,  in  his  brilliant  work  on  the 
Spirit  of  Laws,  has  chiefly  England  in  view  as  a 
model,  to  the  question  at  the  beginning  of  the  first 
French  revolution,  Avhether  the  principles  of  British 
liberty  should  be  adopted,  was  virtually  repeated 
everywhere.  The  representative  principle,  the  trial 
by  jury,  the  liberty  of  the  press,  taxation  and  appro- 
priations by  the  people's  representatives,  the  division 
of  power,  the  habeas  corpus  principle,  publicity,  and 
whatever  else  was  prominent  in  that  liberty  peculiar 
to  the  Anglican  race,  whether  it  had  originated  with 
it,  or.  had  been  retained  by  it  when  elsewhere  it  had 
been  lost  in  the  general  shipwreck  of  freedom,  was 
longed  for  by  the  continental  people,  insisted  on,  or 
struggled  for. 

It  is  well,  then,  to  ask  ourselves,  in  what  does  this 
Anglican  liberty  consist?  The  answer  is  important, 
in  a  general  point  of  view,  as  well  as  because  it  is  the 
broad  foundation  and  framework  of  our  own  Ameri- 
can liberty. 


68  ON  CTVTL  LIBERTY 


CnAPTEE    V. 

ANGLICAN   LIBERTY. 

In  order  to  ascertain  in  wliat  this  pecnliar  system 
of  civil  liberty  consists,  we  must  examine  those 
charters  of  the  whole  Anglican  tribe,  which  belong 
to  "the  times  when  governments  chartered  liberty," 
and  to  those  "when  the  people  charter  governments." 
"We  must  observe  what  principles,  measures,  and  gua- 
rantees were  most  insisted  upon  in  periods  most  dis- 
tinguished by  an  active  spirit  of  liberty,  of  opposition 
to  encroaching  power,  or  of  a  desire  to  prune  public 
power  so  as  to  make  it  in  future  better  harmonize 
with  the  claims  of  individual  liberty.  "We  must  sea 
what  it  is  that  the  people  of  England  and  the  people 
of- America  in  solemn  political  periods  have  solemnly 
declared  their  rights  and  obligations.  We  rniTst 
study  the  periods  of  a  vigorous  development  of 
liberty,  and  we  must  weigh  Magna  Charta,  the  Peti- 
tion of  Eight,  and  the  Bill  of  Eights — the  three 
statutes  which  Lord  Chatham  called  the  Bible  of  the 
English  constitution.  "We  must  inquire  into  the 
public  common  law  of  England,  and  the  common 
law  as  it  has  developed  itself  on  this  side  of  the 
Atlantic;  and    especially  into  the  leading  cases,  of 


AXD  SELF-GOVERXMEXT.  69 

political  and  constitutional  importance  tliat  have 
been  decided  in  England  and  the  United  States/ 
We  must  ponder  our  great  federal  pact,  with  the 
contemporaneous  writers  on  this  constitution,  and 
the  debates  which  led  to  its  adoption  after  the  failure 
of  the  original  articles  of  confederation,  as  well  as 
the  special  charters  which  were  considered  peculiarly 
favorable  to  liberty,  such  as  many  of  the  colonies 
out  of  which  the  United  States  arose.  We  must 
attentively  study  the  struggles  in  which  the  people 
waged  their  all  to  preserve  their  liberties,  or  to 
obtain  new  ones,  and  those  periods  which,  with  re- 
ference to  civil  liberty,  may  be  called  classical.  We 
must  analyze  the  British  and  our  own  revolutions, 
and  compare  them  with  the  political  revolutions 
of  other  nations,  and  we  must  study  not  only  the 
outward  events,  or  the  ultimate  measures,  but  we 
must  probe  their  genesis,  and  ascertain  how  and  why 
these  things  came  about,  and  what  the  principles 
were  for  which  the  chief  men  engaged  in  the  ardu- 
ous task  contended.  We  must  mark  what  it  is  that 
those  nations  wish  to  introduce  among  themselves, 
that  are  longing  for  freedom  similar  to  that  which 
we  enjoy.  We  must  test  which  of  the  many  insti- 
tutions peculiar  to  our  tribe,  have  proved  in  the 


'  A  chronologiciil  table  of  the  leading  cases  in  England  and  the 
United  States,  by  which  great  constitutional  principles  or  essential 
individual  rights  have  been  settlcil  and  sown  like  a  sju-eading,  self- 
increasing  plant,  would  be  highly  instructive,  ami  show  how  much 
we  owe  to  tiic  growth  of  liberty,  and  how  much  this  growth  is 
owing  to  the  husbanding  of  practical  cases  in  the  spirit  of 
freedom. 


70  ON  CIVIL  LTBEIITY 

course  of  time  as  real  props  of  freedom,  or  most 
prolific  in  shooting  fortli  new  Lranclies.  We  must 
read  tlie  best  writers  on  law,  history,  and  political 
philosophy  with  reference  to  these  subjects,  and 
observe  the  process  of  spreading  liberty.  We 
must  note  which  are  the  most  fruitful  principles  of 
Anglican  self-government  in  the  widening  colonies, 
north  and  south  of  the  equator ;  and  examine  our 
own  lives  as  citizens  of  the  freest  land,  as  well  as 
the  great  process  of  expansion  of  liberty  with  our- 
selves. We  ought  clearly  to  bring  before  our  minds 
those  guarantees,  which  invariably  are  the  main 
points  of  assault  when  the  attempt  is  made  to  batter 
the  ramparts  of  civil  liberty  and  bring  the  gallant 
garrison  to  surrender.  And  lastly,  we  ought  to  study 
the  course  of  despotism ;  for  the  physiologist  learns 
as  much  from  pathology  as  from  a  body  in  vigorous 
health. 

We  call  this  liberty  Anglican  freedom,  not  be- 
cause we  think  that  it  ought  to  be  restricted  to  the 
Anglican  tribe,  or  will  or  can  be  so ;  but  simply, 
because  it  has  been  evolved  first  and  chiefly  by  this 
tribe,  and  because  we  must  contradistinguish  it  to 
Galilean  liberty  as  the  sequel  will  sliow.^     Kor  is  it 


2  In  the  year  1848,  I  publislied,  in  an  American  Journal,  a  paper 
headed  Anglican  and  Gallican  Liberty,  in  which  I  indicated  several 
vievrs  which  have  been  farther  developed  in  the  present  work.  A 
distinguished  German  criminalist  and  publicist  did  me  the  honor 
of  publishing  a  Gei-man  translation  of  this  paper;  in  which,  how- 
ever, he  says  that  what  I  have  called  Anglican  liberty  is  more 
generally  called  Germanic  liberty.  This  is  an  error.  I  allow  that 
the  original  Teutonic  spii-it  of  individual  independence,  and  the 
anti-Celtic  spirit  of  being  swayed  by  masses,  largely  enters  into 


AND  SELF-GOVERNMENT.  71 

iiiaintaineJ  tliat  all  that  is  included  in  Anglican 
liljorty  is  of  especial  Anglican  origin.  Liljerty  is 
one  of  the  wreaths  of  humanitj^,  and  in  all  liberty 
there  must  be  a  large  fund  of  universal  humanity,  as 
all  cultivated  languages  must  agree  in  embodying 
the  most  important  principles  of  intellectual  analysis 
and  combination ;  and  as  Grecian  architecture  does 
not  contain  exclusively  what  the  Greeks  originated, 
and  is  not,  on  account  of  its  very  humanity,  restricted 
to  Greece.  Still,  Ave  call  it  Greek  architecture,  and 
■\ve  do  so  with  propriety ;  for  it  was  in  Greece  that 
that  column  and  capital  were  developed  which  is 
found  everywhere  with  civilized  man,  has  passed 
over  from  a  pagan  world  into  christian  civilization, 
and  is  seen  wherever  the  bible  is  carried. 

Now  what  we  call  Anglican  liberty,  are  the  gua- 
rantees which  our  tribe  has  elaborated,  as  guarantees 
of  those  rights  which  experience  has  shown  to  be 
inost  exposed  to  the  danger  of  attack  by  the  strong- 
est power  in  the  state,  namel}'',  the  executive,  or  as 


wliat  I  liave  termed  Anglican  lil)orty ;  but  tliis  is  a  sj-stem  of  civil 
liberty  which  has  developed  itself  independent  upon  all  other  Teu- 
tonic nations,  has  been  increasing  while  nearly  all  the  other  Teutunic 
nations  lost  their  liljcrty,  and  of  which  unfortunately  the  Germans, 
who  ought  to  be  supposed  the  most  Germanic  of  the  Germanic 
tiibes,  Iiavc  nothing,  except  what  they  may  have  left  at  present  of 
tlie  late  attempts  of  engrafting  anew  principles  or  guarantees  of 
liberty  on  their  polities,  which  had  become  more  and  more  a  copy 
of  French  centralization.  This  is  not  the  place  to  discuss  the  sub- 
ject of  so  called  Germanic  liberty.  All  tliat  is  necessary  hero  to 
.'^t!lto,  is  that,  wliat  is  c:dlcd  Anglican  liberty  is,  as  was  said  before, 
a  body  of  guarantees  which,  as  an  entire  .system,  has  been  elabo- 
rated l)y  the  Anglican  tribe,  and  is  peculiar  to  this  tribe,  unless 
imitated  by  otiiers. 


72  ON  CIVIL  Lri5KliTV 

most  important  to  a  frame  of  government  wliicli  will 
be  least  liable  to  generate  these  dangers,  and  also 
most  important  to  the  essential  yet  weaker  branches 
of  government.  It  consists  in  the  civil  guarantees 
of  those  principles  which  are  most  favorable  to  a 
manly  individual  independence  and  ungrudged  enjoy- 
ment of  individual  humanity ;  and,  those  guarantees 
which  insure  the  people,  meaning  the  totality  of  the 
individuals  as  a  unit,  or,  the  nation,  against  being 
driven  from  the  pursuit  of  those  high  aims  which 
have  been  assigned  to  it  by  Providence  as  a  nation, 
or  as  a  united  people.  Where  the  one  or  the  other 
is  omitted,  or  exclusively  pursued,  there  is  no  full 
liberty.  If  the  word  people  be  taken  as  never 
meaning  anything  else  than  a  unit,  a  widely  extended 
and  vigorous  action  of  that  unit  may  exist  indeed — 
blinding  ambition  may  be  enjoyed,  but  it  is  no 
liberty;  if,  on  the  other  hand,  the  term  people  is 
never  taken  in  any  other  sense  than  a  mere  term  of 
brevity,  and  for  the  impossible  enumeration  of  all 
individuals,  without  inherent  connection,  the  conse- 
quence must  be  a  sejunctive  egotism  which  loses  the 
very  power  of  protecting  the  individual  rights  and 
liberties. 

These  guarantees,  then,  as  we  acknowledge  them 
in  the  period  of  civil  development  in  which  we  live, 
and  as  far  as  they  are  common  to  the  whole  Anglican 
tribe,  and,  if  of  a  more  general  character,  are  still 
inseparably  interwoven  with  what  is  peculiar  to  the 
tribe,  we  call  Anglican  liberty.  These  guarantees 
and  checks  I  now  proceed  to  enumerate. 


AND  SELF-GOVEKNMEXT.  73 


CIIAPTEK    VI. 

•       NATIONAL  INDEPENDENCE.     PERSONAL  LIBERTY. 

1.  It  is  impossible  to  imagine  liberty  in  its  fulness, 
if  the  people  as  a  totality,  the  country,  the  nation, 
whatever  name  may  be  preferred,  or  its  government, 
is  not  independent  on  foreign  interference.  The 
country  must  have  what  the  Greeks  called  autonomy. 
This  implies,  that  the  country  must  have  the  right, 
and,  of  course,  the  power,  of  establishing  that  govern- 
ment which  it  considers  best,  without  interference 
from  without  or  pressure  from  above.  No  foreigner 
must  dictate ;  no  extra-governmental  principle,  no 
divine  right  or  "principle  of  legitimacy"  must  act  in 
the  choice  and  foundation  of  the  government;  no 
claim  superior  to  that  of  the  people's,  that  is,  national 
sovereignty  must  be  allowed.'  This  independence 
or  national  self-government  farther  implies  that,  the 
civil  government  of  free  choice  or  free  acquiescence 
being  established,  no  influence  from  without,  besides 
that  of  freely  acknowledged  justice,  fairness,  and  mo- 
rality, must  be  admitted.  There  must  then  be  the 
requisite  strength  to  resist  when  necessary,     Wliilc 


'  Political  Ethics,  clinpter  on  Sovereigntj. 
VOL.  T. — 7 


74:  OX  CIVIL  LIBEKTY 

tlic  author  is  setting  down  these  remarks,  the  news 
is  reaching  us  of  the  manly  declaration  made  in  the 
British  commons,  by  the  minister  of  foreign  affairs, 
lord  Palmerston,  that  the  united  calls  of  all  the  con- 
tinental powers  would  be  utterly  insufficient  to  give 
up  or  to  drive  from  the  British  territory  those  politi- 
cal exiles  who  have  sought  an  asjdum  on  English 
soil,  and  of  the  ready  support  given  by  the  press  to 
the  spokesman  of  the  nation.  Even  the  French,  so 
far  as  they  are  allowed  at  the  present  untoward  con- 
junction to  express  themselves,  applaud  this  declara- 
tion as  a  proof  of  British  freedom.  The  Helvetic 
cantons,  on  the  other  hand,  are  forced  to  yield  to 
the  demands  even  of  an  Austrian  government ; 
and  the  worried  republic  of  Switzerland,  so  far  as 
this  goes,  cannot  be  said  to  be  free.  The  history 
of  the  nineteenth  century,  but  especially  that  of 
our  own  ao;e,  is  full  of  instances  of  the  interference 
with  the  autonomy  of  nations  or  states.  Italy,  Ger- 
many, especially  Hessia,  Spain,  Hungary,  furnish 
numerous  instances.  Cases  may  occur,  indeed,  in 
which  foreign  interference  becomes  imperative.  All 
we  can  then  say  is,  that  the  people's  liberty  so  far  is 
gone,  and  must  be  recovered.  No  one  mil  maintain 
that  interference  with  Turkish  affairs  at  the  present 
time  is  -wrong  in  those  powers  who  resist  Russian  in- 
fluence in  that  quarter,  but  no  one  will  say  either  that 
Turkey  enjoys  full  autonomy.  The  very  existence 
of  Turkey  depends  upon  foreign  sufferance. 

On  the  other  hand,  it  must  be  remembered  that  this 
unstinted  autonomy  is  greatly  endangered  at  home 
b}''  interfering  with  the  domestic  affairs  of  foreigners. 


AND  SELF-GOVERNMENT.  7o 

The  opinion,  therefore,  urged  by  Washington,  that 
we  should  keep  ourselves  aloof  from  foreign  poli- 
tics, is  of  far  greater  weight  than  those  believe  who 
take  it  merely  with  reference  to  foreign  alliances 
and  ensuing  wars.  The  interference  need  not  neces- 
sarily proceed  from  government.  Petitions,  affect- 
ing foreign  public  measures  or  institutions,  and 
coming  from  large  bodies,  or  even  committees  sent 
to  express  the  approval  of  a  foreign  government,  of 
which  we  have  had  a  recent  and  most  remarkable 
instance,'^  are  reprehensible  on  the  same  ground. 

It  is  one  of  the  reasons  why  a  broadcast  liberty 
and  national  development  was  so  difficult  in  the 
middle  ages,  that  the  pope,  in  the  times  of  his  highest 
power,  could  interfere  with  the  autonomy  of  states. 
I  do  not  discuss  here  whether  this  was  not  salutary 
at  times.  Gregory  the  Seventh  was  a  great,  and, 
probably,  a  necessary  man;  but  where  civil  liberty 


2  The  address  and  declaration  of  four  thousand  Britisli  mer- 
chants, presented  in  the  month  of  April,  1853,  to  the  emperor  of 
the  French,  will  forever  remain  a  striking  proof  of  British  lihcrty ; 
for  in  every  other  European  country  the  government  would  have 
imprisoned  every  signer,  if  indeed  the  police  had  not  nipped  the 
petition  in  the  bud ;  and  it  will  also  forever  remain  a  testimony  how 
far  people  can  forget  themselves  and  their  national  character  when 
funds  are  believed  to  be  endangered  or  capital  is  desired  to  be  placed 
advantageously.  But  I  have  alluded  to  it  in  the  text,  as  an  instance, 
onlj',  of  popular  interference  with  foreign  governments,  doubtless 
the  most  remarkable  instance  of  the  kind  on  record.  Whether  the 
whole  proceeding  was  "not  far  short  of  high  treason,"  as  hinl 
Campbell  stigmatized  it  in  the  house  of  lords,  may  be  left  undecided. 
It  certainly  would  have  been  treated  as  such  during  some  periods 
of  Englihh  history,  and  must  be  treated  by  all  right-minded  men  of| 
the  present  period  as  a  most  unworthy  procedure. 


76  ON  CIVIL  LIBERTY 

is  the  object,  as  it  is  now  with  civilized  nations,  this 
medieval  interference  of  the  pope  would  be  an 
abridgment  of  it,  just  as  much  as  the  Austrian  influ- 
ence in  the  States  of  the  Church  is  an  abridgment  of 
their  independence  at  present. 

It  is  a  remarkable  feature  in  the  history  of  England, 
that  even  in  her  most  catholic  times  the  people  were 
more  jealous  of  papal  interference  by  legates  or  other 
means,  than  any  other  nation,  unless  we  except  the 
Germans,  when  their  emperors  were  in  open  war  with 
the  popes.  This  was,  however,  transitory,  while  in 
England  intercourse  with  the  papal  see  was  legally 
restricted  and  actually  made  penal. 

2.  Civil  liberty  requires  firm  guarantees  of  indi- 
vidual liberty,  and  among  these  there  is  none  more 
important  than  the  guarantee  of  personal  liberty,  or 
the  great  habeas  corpus  principle,  and  the  prohibi- 
tion of  "  general  warrants"  of  arrest  of  persons. 

To  protect  the  individual  against  the  interference 
with  personal  liberty  by  the  power-holder  is  one  of 
the  elementary  requisites  of  all  freedom,  and  one  of 
the  most  difficult  problems  to  be  solved  in  practical 
politics.  If  any  one  could  doubt  the  difficulty,  his- 
tory would  soon  convince  him  of  the  fact.  The 
English  and  Americans  safely  guard  themselves 
against  illegal  arrest ;  but  a  long  and  ardent  struggle 
in  England  was  necessary  to  obtain  this  simple 
element,  and  the  ramparts  around  personal  liberty, 
now  happily  existing,  would  soon  be  disregarded, 
should  the  people,  by  a  real  prava  negligentia  malo- 
rum,  ever  lose  sight  of  this  primary  requisite. 

The   means  by  which  Anglican  liberty  secures 


AND  SELF-GOVERXMEXT.  77 

personal  liberty  are  tlu'eefold :  the  priuciple  that 
every  man's  house  is  his  castle,  the  prohibition  of 
general  warrants,  and  the  habeas  corpus  act. 

Every  man's  house  is  his  castle.  It  is  a  principle 
evolved  by  the  common  law  of  the  land  itself,  and  is 
exhibited  in  a  yet  stronger  light  in  the  Latin  ver- 
sion, which  is,  Domus  sua  enique  est  tutissimum 
refugium,  and  Nemo  de  domo  sua  extrahi  debet, 
which  led  the  great  Chatham,  when  speaking  on 
general  warrants,  to  pronounce  that  passage  with 
which  now  every  English  and  American  schoolboy 
has  become  flimiliar  througli  his  Reader.  "Every 
man's  house,"  he  said,  "is  called  his  castle.  "Why? 
Because  it  is  surrounded  b}^  a  moat,  or  defended  by 
a  wall?  No.  It  may  be  a  straw-built  hut;  the 
wind  may  whistle  around  it,  the  rain  may  enter  it, 
but  the  king  cannot." 

Accordingly,  no  man's  house  can  be  forcibly 
opened,  or  he  or  his  goods  be  carried  away  after  it 
has  thus  been  forced,  except  in  cases  of  felony,  and 
then  the  sheriff'  must  be  furnished  with  a  warrant, 
and  take  great  care  lest  he  commit  a  trespass.  This 
principle  is  jealously  insisted  upon.  It  has  been  bu,t 
recently  decided  in  England,  that  although  a  hous?. 
may  have  been  unlawfully  erected  on  a  common, 
ami  every  injured  commoner  may  pull  it  dtnvn,  he 
is  nevertheless  not  justified  in  doing  so  if  there  are 
actually  people  in  it. 

There  have  been  nations,  indeed,  enjoying  a  high 
degree  of  liberty,  without  this  law  maxim ;  but  the 
question  in  thi,s  place  is  eycn  less  about  the  decided 
advantages,  arising  to  freemer\  from  the  existence  of 


78  ON  CIVIL  LIBERTY 

til  is  principle,  than  about  the  sturdiness  of  the  law 
and  its  independent  development,  that  could  evolve 
and  establish  this  bold  maxim.  It  must  be  a  manly 
race  of  freedomdoving  people,  whose  own  common 
law  could  deposit  such  fruitful  soil.  For,  it  must  be 
observed,  that  this  sterling  maxim  was  not  esta- 
blished, and  is  not  maintained,  by  a  sejunctive  or  a 
law-defying  race.  The  Mainots  considered  their 
Lacedaemonian  mountain  fastnesses  as  their  castles 
too,  during  the  whole  Turkish  reign  in  Greece ;  the 
feudal  baron  braved  authority  and  law  in  his  castle, 
but  the  English  maxim  was  settled  by  a  highly  con- 
junctive, a  nationalized  people,  and  at  the  same  time 
when  law  and  general  government  extended  more 
and  more  over  the  land.  It  is  insisted  on  in  the 
most  crowded  city  the  world  has  ever  seen,  with  the 
same  jealousy  as  in  a  lonely  mountain  dwelling ;  it 
is  carried  out,  not  by  retainers  and  in  a  state  of  war 
made  permanent,  but  by  the  law,  which  itself  has 
given  birth  to  it.  The  law  itself  says :  Be  a  man, 
thou  shalt  be  sovereign  in  thy  house.  It  is  this 
spirit  which  brought  forth  the  maxim,  and  the  spirit 
which  it  necessarily  nourishes,  that  makes  it  im- 
portant. 

It  is  its  direct  antagonism  to  a  mere  police 
government,  its  bold  acknowledgment  of  individual 
security  opposite  to  government,  it  is  its  close  rela- 
tionship to  self-government,  which  give  so  much 
dignity  to  this  guai'antee.  To  see  its  value,  we  need 
only  throw  a  glance  at  the  continental  police,  how  it 
enters  at  night  or  in  the  day,  any  house  or  room, 
breaks  open  any  draAver,  seizes  papers  or  an\^hing 


AND  SELF-GOVERNMENT.  79 

it  deems  fit,  without  any  otlier  warrant  than  the 
police  hat,  coat  and  button. 

Nor  must  we  believe  that  the  maxim  is  preserved 
as  a  constitutional  rarity,  and  not  as  a  living  principle. 
As  late  as  the  month  of  June,  1853,  a  bill  was  before 
the  house  of  commons,  proposing  some  guarantee 
against  property  of  nuns  and  monks  being  too 
easily  withdrawn  from  relations,  and  that  certain 
officers  should  have  the  right  to  enter  nunneries 
from  eight,  A.  M.  to  eight  o'clock,  P.  M.,  provided 
that  they  had  strong  suspicion  that  an  inmate  was 
retained  against  her  will.  The  leading  minister  of 
the  crown  in  the  commons,  lord  John  Eussell,  op- 
posed the  bill,  and  said :  "  Pass  this  bill  and  where 
will  be  the  boasted  safety  of  our  houses.  It  Avould 
establish  general  tyranny," 

The  prohibition  of  "  general  warrants."  The  war- 
rant is  the  paper  which  justifies  the  arresting  person 
to  commit  so  grave  an  act  as  depriving  a  citizen,  or 
alien,  of  personal  liberty.  It  is  important,  therefore, 
to  know  who  has  the  right  to  issue  such  warrants, 
against  whom  it  may  be  done,  and  how  it  must  be 
done,  in  order  to  protect  the  individual  against  arbi- 
trary police  measures.  The  Anglican  race  has  been 
so  exact  and  minute  regarding  this  subject,  that  tlic 
whole  theory  of  the  warrant  may  be  said  to  be  pecu- 
liarly Anglican,  and  a  great  self-grown  institution. 
"  A  warrant,"  the  books  say,  "  to  deprive  a  citizen  of 
his  personal  liberty  should  be  in  writing,  and  ought 
to  show  the  authority  of  the  person  who  makes  it, 
the  act  which  is  authorized  to  be  done,  the  name  or 
description  of  the  party  who  is  authorized  to  execute 


80  ON  CIVIL  LIBERTY 

it,  and  of  the  party  against  whom  it  is  made;  and,  in 
criminal  cases,  the  grounds  upon  which  it  is  made." 
The  warrant  should  name  the  person  against  whom 
it  is  directed ;  if  it  does  not,  it  is  called  a  general 
warrant,  and  Anglican  liberty  does  not  allow  it.' 
AVhere  it  is  allowed  there  is  police  government,  but 
not  the  government  of  real  freemen.  It  is  necessary 
that  the  person  who  executes  the  warrant  be  named 
in  it.  Otherwise  the  injured  citizen,  in  case  of  illegal 
arrest,  would  not  know  whom  he  should  make  re- 
sponsible ;  but  if  the  person  be  named,  he  is  answer- 
able, according  to  the  Anglican  principle  that  every 
officer  remains  answerable  for  the  legality  of  all  his 
acts,  no  matter  who  directed  them  to  be  done.  In- 
deed, we  may  say  the  special  warrant  is  a  death  blow 
to  police  government. 

The  constitution  of  the  United  States  demands 
that  "no  warrants  shall  issue  but  upon  probable 
cause,  supported  by  oath  or  affirmation,  and  particu- 
larly describing  the  place  to  be  searched,  and  the 
persons  or  things  to  be  seized,  &c."'* 

The  warrant  is  held  to  be  so  important  an  element 
of  civil  liberty,  that  a  defective  warrant  is  considered 


3  A  warrant  to  apprehend  all  persons  suspected,  or  all  persons 
guilty,  &c.,  &c.,  is  illegal.  The  person,  against  whom  the  warrant 
runs,  ought  to  be  pointed  out.  The  law  on  this  momentous  sub- 
ject was  laid  down  by  lord  Mansfield  in  the  case  of  Money  v.  Leach, 
3  Bur.  1742,  where  the  "general  warrant"  which  had  been  in  use 
since  the  revolution,  directuig  the  officers  to  apprehend  the 
"authors,  printers  and  publishers"  of  the  famous  No.  45  of  the 
North  Briton,  was  held  to  be  illegal  and  void. 

*  The  reader  will  find  a  copy  of  the  Constitution  of  the  United 
States  in  the  appemlis. 


AXD  SELF-OOVERXMEXT.  81 

by  the  common  law  of  England  and  America  one  of 
the  reasons  which  reduce  the  killing  of  an  officer 
from  murder  to  manslaughter.  The  reader  will  see 
this  from  the  following  passage,  which  I  copy  from  a 
work  of  high  authority  both  here  and  in  England. 
I  give  the  passage  entire,  because  it  relates  wholly 
to  individual  liberty,  and  I  shall  have  to  recur  to  it.* 
The  learned  jurist  says: 

"Tliougli  tlie  killing  of  an  officer  of  justice,  while 
in  the  regular  execution  of  his  duty,  knowing  him  to 
be  an  officer,  and  with  intent  to  resist  him  in  such 
exercise  of  duty,  is  murder ;  the  law  in  that  case  im- 
plying malice ;  yet  where  the  process  is  defective  or 
illegal,  or  is  executed  in  an  illegal  manner,  the  killing 
is  only  manslaughter,  unless  circumstances  appear,  to 
show  express  malice ;  and  then  it  is  murder.  Thus, 
the  killing  will  be  reduced  to  manslaughter,  if  it  be 
shown  in  evidence  that  it  was  done  in  the  act  of  pro- 
tecting the  slayer  against  an  arrest  by  an  officer  acting 
beyond  the  limits  of  his  precinct ;  or,  by  an  assistant, 
not  in  the  presence  of  the  officer;  or,  by  virtue  of  a 
warrant  essentially  defective  in  describing  either  the 
person  accused,  or  the  offence ;  or,  where  the  party 
had  no  notice,  either  expressly,  or  from  the  circum- 
stances of  the  case,  that  a  lawful  arrest  was  intended  ; 
but,  on  the  contrary,  honestly  believed  that  his  liberty 
was  assailed  without  any  pretence  of  legal  authority ; 


6  This  is  ?  123  of  Viil.  III.  df  Dr.  Grccnleaf  on  Kviilcnco,  wliicli  I 
liavc  copied  by  the  permission  of  my  esteemed  and  distinguit;hed 
friend.  I  have  left  out  all  the  lejjal  references.  The  profes.-^ion.il 
lawyer  is  acr|uainted  with  tlie  hook,  and  the  references  would  bo 
important  to  him  alone. 


82  ON  CIVIL  LIBERTY 

or,  where  the  arrest  attempted,  though  for  a  felony, 
was  not  only  without  warrant,  but  "\nthout  hue  and 
cry,  or  fresh  pursuit ;  or,  being  for  a  misdemeanor 
only,  was  not  made  flagrante  delicto ;  or,  where  the 
party  was  on  any  other  ground,  not  legally  liable  to 
be  arrested  or  imprisoned.  So,  if  the  arrest,  though 
the  party  were  legally  liable,  was  made  in  violation 
of  law,  as,  by  breaking  open  the  outer  door  or  win- 
dow of  the  party's  dwelling-house,  on  civil  process ; 
for  such  process  does  not  justify  the  breaking  of  the 
dwelling-house,  to  make  an  original  arrest ;  or,  by 
breaking  the  outer  door  or  window,  on  criminal  pro- 
cess, without  previous  notice  given  of  his  business, 
with  demand  of  admission,  or  something  equivalent 
thereto,  and  a  refusal." 

The  Habeas  Corpus  Act.  This  famous  act  of  par- 
liament was  passed  under  Charles  the  Second,  and  is 
intended  to  insure  to  an  arrested  person,  whether  by 
warrant  or  on  the  spot,  that  at  his  demand  he  be 
brought,  by  the  person  detaining  him,  before  a  judge, 
who  may  liberate  him,  bail  him,  or  remand  him,  no 
matter  at  whose  command  or  for  what  reasons  the 
prisoner  is  detained.  It  allows  of  no  "  administrative 
arrests,"  as  extra-judicial  arrests  are  called  in  France, 
or  imprisonment  for  reasons  of  state.  The  habeas 
corpus  act  ferther  insures  a  speedy  trial,  a  trial 
by  the  law  of  the  land  and  the  la's^'ful  court — 
three  points  of  the  last  importance.  It  moreover 
guarantees  that  the  prisoner  know  for  what  he  is 
arrested,  and  may  properly  prepare  for  trial.  The 
habeas  corpus  act  did  by  no  means  first  establish  all 
these  principles,  but  numberless  attempts  to  secure 


AXD  SELF-GOVERNMENT.  83 

them  had  failed,  and  the  act  may  be  considered  as  the 
ultimate  result  of  a  long  struggle  between  law  and 
individual  on  the  one  hand,  and  power  on  the  other. 
The  history  of  this  act  is  interesting  and  symptomatic.^ 

The  constitution  of  the  United  States  prohibits  the 
suspension  of  the  habeas  corpus  act,  "  unless  when, 
in  cases  of  rebellion  or  invasion,  the  public  safety 
may  require  it ;"  and  Alexander  Hamilton  sa3's,  in 
the  Federalist  •?  "  The  establishment  of  the  writ  of 
habeas  corpus,  the  prohibition  of  ex  post  facto  laws 
and  of  titles  of  nobility,  to  which  we  have  no  cor- 
responding provisions  in  our  constitution,  are  perhaps 
greater  securities  to  liberty  than  any  it  contains;" 
and,  with  reference  to  the  first  two,  he  justly  adds  the 
words  of  "the  judicious  Blackstone."^ 

All  our  state  constitutions  have  adopted  these  im- 
portant principles.  The  very  opposite  of  this  gua- 
rantee was  the  "  lettre  de  cachet,"  or  is  the  arbitrary 
imprisonment  at  present,  in  France. 

There  was  in  England,  until  within  a  recent  date, 
a  remarkable  deviation  from  the  principles  of  personal 
liberty — the  impressment.  The  crown  assumed  the 
right  to  force  any  able-bodied  man  on  board  a  man- 
of-war,  to  serve  there  as  sailor.  There  has  always 
been  a  great  deal  of  doubt  about  this  arrogated 
privilege  of  the  cro^vn,  and,  generally,  sailors  only 
were  taken,  chiefly  in  times  of  war  and  when  no 
hands  would  freely  enlist.     Every  friend  of  liberty 


<<  The  appendix  contains  the  Habeas  Corpus  Act. 

•  Taper,  No.  LXXXIV. 

*  Bhickstouc's   Commentaries,  vol.    i.   pa^e   l^JG. — Note,  in    the 
Federalist. 


84  ox  CIVIL  LIBERTY 

will  rejoice  that  the  present  administration  has  taken 
in  hand  a  new  plan  of  manning  the  navy,  by  which 
this  blemish  will  be  removed,^ 


9  The  plan  Las  not  yet  been  published,  but  one  of  the  ministers, 
sir  James  Graham,  said  in  the  commons,  in  April,  1853  : 

"  The  first  point  on  which  all  the  authorities  consulted  were  agreed 
is,  that  whatever  measures  are  taken  must  rely  for  success  on  the 
voluntary  acceptance  of  them  by  the  seamen,  and  that  any  attempt 
to  introduce  a  coercive  mode  of  enlistment  would  be  folloAved  by 
mischievous  consequences  and  failure." 


AND  SELF-GOVEKXMEXT.  85 


ClIAPTEll    VII. 

BAIL.    PENAL  TIUAL. 

3.  Connected  v/itli  the  guarantees  of  personal 
liberty,  treated  of  in  the  foregoing  chapter,  is  the 
bail. 

The  laAV  of  all  nations  not  wholly  depraved  in  a 
political  point  of  view,  adopts  the  principle  that  a 
man  shall  be  held  innocent  until  proved  by  process 
of  law  to  be  otherwise.  In  fact,  the  very  idea  of  a 
trial  implies  as  much.  Theoretically,  at  least,  this  is 
acknowledged  by  all  civilized  nations,  although  often 
the  way  in  which  things  are  actually  carried  on,  and 
in  many  countries  the  very  mode  of  trying  itself,  are 
practical  denials  of  the  principle.  But  even  in  the 
freest  country  there  is  this  painful  yet  unavoidable 
contradiction,  that  while  we  hold  every  person  inno- 
cent until  by  lawful  trial  proved  to  be  guilty,  we 
must  arrest  a  person  in  order  to  bring  hira  to  a 
penal  trial ;  and,  althougli  by  the  law  he  is  still  con- 
sidered innocent,  he  must  be  deprived  of  personal 
liberty  until  his  trial  can  take  place,  which  it  is 
impossible  to  let  always  follow  instantly  upon  the 
arrest.  To  mitigate  this  harshness  as  much  as  pos- 
sible, free  nations  guarantee  the  principle  of  bailing 
VOL.  I.— 8 


86  ON  CIVIL  libp:rty 

in  all  cases  iu  wliicli  the  loss  of  the  bailed  sum  may 
be  considered  as  a  more  serious  evil  than  the  possible 
punishment.  The  amount  of  bail  must  depend  upon 
the  seriousness  of  the  charge,  and  also  upon  the 
means  of  the  charged  person.  If  judges  were  allowed 
to  demand  exorbitant  bail,  tliey  miglit  defeat  tlie 
action  of  this  principle  in  every  practical  case.  It 
was  enacted,  therefore,  in  the  first  year  of  William 
and  Mary,'  and  has  been  adopted  in  all  our  constitu- 
tions, that  no  "  excessive  bail"  shall  be  required.  The 
nature  of  the  case  admits  of  no  more  exact  term ;  but, 
with  an  impeachment  hanging  over  the  judges,  should 
the  principle  thus  solemnly  pronounced  be  disre- 
garded, it  has  worked  well.  Indeed,  there  are  fre- 
quent cases  in  the  United  States  in  which  this  principle 
is  abused,  and  society  is  endangered,  because  persons 
are  bailed  wlio  are  under  the  heaviest  charges,  and 
have  thus  an  opportunity  of  escape  if  they  know 
themselves  guilty.  As  this  can  take  place  only  Avith 
persons  who  have  large  sums  at  their  disposal,  either 
in  their  own  possession  or  in  that  of  their  friends,  and 
as  liberty  demands  first  of  all  the  foundation  of  justice, 
it  is  evident  that  this  abuse  of  bail  works  as  much 
against  essential  liberty  as  the  proper  use  of  bail 
guarantees  it.  "We  ought,  everywhere,  to  jeturn  to 
the  principle  of  distinguishing  transgressions  of  the 
law  into  bailable  ofiences  and  offences  for  the  sus- 
pected commission  of  which  the  judge  can  take  no 
bail.  These  are  especially  those  offences  for  the  pun- 
ishment of  which  no  equivalent  in  money  can  be 


'  William  and  Mary,  stat.  ii.  c.  2. 


AND  SELF-GOVERNMENT.  87 

imagined,  for  instance  death  or  imprisonment  for  life, 
and  those  offences  which  put  the  offender  into  the 
possession  of  the  sum  required  for  the  bail. 

It  has  been  objected  to  the  bail  that  it  works 
unjustly.  It  temporarily  deals  with  so  precious  a 
thing  as  personal  liberty  according  to  possession  of 
money ;  but  it  must  be  remembered  that  the  whole 
arrest  before  trial  is  an  evil  of  absolute  necessity,  and 
the  more  we  can  limit  it  the  better. 

Liberty  requires  bail,  and  that  it  be  extended  as 
far  as  possible ;  and  it  requires  likewise  that  it  be  not 
extended  to  all  ofi'ences,  and  that  substantial  bail  only 
be  accepted. 

4.  Another  guarantee,  of  the  last  importance,  is 
a  well-secured  penal  trial,  hedged  in  with  an  efficient 
})rotection  of  the  indicted  person,  the  certainty  of  his 
defence,  a  distinct  indictment  charging  a  distinct  act, 
the  duty  of  proving  this  act  on  the  part  of  govern- 
ment, and  not  the  duty  of  proving  innocence  on  the 
}mrt  of  the  prisoner,  the  fairness  of  the  trial  by  peers 
of  the  prisoner,  the  soundness  of  the  rules  of  evidence, 
the  publicity  of  the  trial,  the  accusatorial  (and  not 
the  inquisitorial)  process,  the  certainty  of  the  law  to 
be  applied,  together  with  speed  and  utter  impartiality, 
and  an  absolute  verdict.  It  is  moreover  necessary 
that  the  preparatory  process  be  as  little  vexatious 
as  possible. 

When  a  person  is  })enally  indicted,  he  individually 
forms  one  party,  and  society,  the  state,  the  government 
forms  the  other.  It  is  evident  that  unless  very  strong 
and  distinct  guarantees  of  ]irotection  are  given  to  the 
former,  that  lie  bo  subicctcd  to  a  fair  trial,  and  tliat 


88  ON  CIVIL  LTBEllTY 

iiolJiincj;  be  a(ljn<]geil  to  liiiii  1)iit  wliut  tlic  law  already 
existing  demands  and  allows,  there  can  be  no  secu- 
rity against  oppression.  For  government  is  a  power, 
and,  like  every  power  in  existence,  it  is  desirous  of 
carrying  its  point — a  desire  which  increases  in  inten- 
sity the  greater  the  difficulties  are  which  it  finds  in 
its  way. 

Hence  it  is  that  modern  free  nations  ascribe  so 
great  an  importance  to  well  regulated  and  carefully 
elaborated  penal  trials.  Montesquieu,  after  having 
given  his  definitions  of  what  he  calls  philosophical 
liberty,  and  of  political  liberty,  which,  as  we  have 
seen,  he  says,  consists  in  securit}^,  continues  thus: 
"  This  security  is  never  more  attacked  than  in  public 
and  private  accusations.  It  is,  therefore,  upon  the 
excellence  of  the  criminal  laws  that  chiefly  the  liberty 
of  the  citizen  depends."^  Although  we  consider  this 
opinion  far  too  general,  it  nevertheless  shows  how 
great  a  value  Montesquieu  set  on  a  well-guarded 
penal  trial,  and  he  bears  us  out  in  considering  it  an 
essential  element  of  modern  liberty.  The  concluding 
words  of  Mr.  Mittermaicr's  work  on  the  Penal  Pro- 
cess of  England,  Scotland,  and  the  United  States,  are : 
"  It  wall  be  more  and  more  acknowledged  how  true 
it  is  that  the  penal  legislation  is  the  keystone  of  a 
nation's  public  law."'' 

This  passage  of  the  German  criminalist  expresses 
the  truth  more  accurately  than  the  quoted  dictum  of 


2  Esprit  des  Lois,  XII.  2,  Of  the  Liberty  of  tlie  Citizen. 
'^  This  comprelicniiive  and  excellent  wurk  was  published  in  Ger- 
many, Erlangen,  1851. 


AND  SELF-GOVERNMEXT.  89 

Montesquieu.  For,  although  we  consider  the  penal 
trial  and  penal  law  in  general  intimately  connected 
with  civil  liberty,  it  is  nevertheless  a  fact  that  a 
sound  penal  trial  is  invariably  one  of  the  last  fruits 
of  political  civilization,  partly  because  it  is  one  of 
the  most  difficult  subjects  to  elaborate,  and  because 
it  requires  long  experience  to  find  the  proper  mean 
between  a  due  protection  of  the  indicted  person 
and  an  equally  due  protection  of  society ;  partly  be- 
cause it  is  one  of  the  most  difficult  things  in  all 
spheres  of  action  to  induce  irritated  power  to  limit 
itself  as  well  as  to  give  to  an  indicted  person  the 
full  practical  benefit  of  the  theoretic  sentence,  easily 
pronounced  like  all  theory,  that  the  law  holds  every 
one  innocent  until  proved  not  to  be  so.  The  Roman 
and  Athenian  penal  trials  were  sadly  deficient.  The 
English  have  allowed  counsel  to  the  penally  indicted 
person  only  within  our  memory,  Avhile  they  had 
been  long  allowed  in  the  United  States.**     The  penal 


*  It  must  not  be  forgotten,  liowever,  tliat,  deficient  as  the  penal 
trial  of  England,  without  counsel  for  the  defendant,  was,  it  contained 
many  guarantees  of  protection,  especially  publicity,  a  fixed  law  of 
evidence,  with  the  exclusion  of  hearsay  evidence,  the  jury  and  tlie 
neutral  position  of  the  judge  in  consequence  of  tlie  trial  by  jury, 
and  the  strictly  accusatorial  character  of  the  trial,  with  tlie  most 
rigid  adhesion  to  the  principle  of  trying  a  person  upon  the  indict- 
ment alone,  so  that  the  judge  could  be,  and  in  later  times  really 
had  been,  the  protector  of  the  prisoner.  Had  tlie  trial  been  in- 
quisitorial instead  of  accusatorial,  the  absence  of  counsel  for  defence 
would  have  been  an  enormity.  To  tliis  enormity  Austria  has  actually 
returned  since  the  beginning  of  tliis  century.  The  code  promulgated 
by  Joseidi  gave  counsel,  or  a  "defensor,"  to  the  prisoner;  but, 
although  the  process  remained  in<iuisitorial,  the  defensor  was  again 
disallowed.     Tlie  late  revolution  re-establislied  him,  but  whellnM-  lie 

ft* 


90  ON  CIVIL  LIBERTY 

trial  in  the  Netherlands  was  a  poor  one,  when  never- 
theless, the  Netherlandcrs  are  allowed  on  all  hands  to 
have  enjoyed  a  high  degree  of  civil  liberty.  It  is 
one  of  the  most  common  facts  in  history  that  a  na- 
tion is  more  or  less  advancing  in  nearly  all  the 
branches  of  civilization,  while  the  penal  trial  and  the 
whole  penal  law  remains  almost  stationary  in  its  bar- 
barous inconsistency.  The  penal  trial  of  France,  up 
to  the  first  revolution,  remained  equally  shocking  to 
the  feelings  of  humanity  and  to  the  laws  of  legal  logic. 
The  reason  of  this  apparent  inconsistency  is  that, 
in  most  cases,  penal  trials  affect  personally  indivi- 
duals who  do  not  belong  to  the  classes  which  have 
the  greatest  influence  upon  legislation.  This  point  is 
especially  important  in  countries  where  the  penal 
trial  is  not  public.  People  never  learn  what  is  going 
on  in  the  houses  of  justice.  Another  and  great 
reason  is  that  generally  lawyers  by  profession  are 
far  less  interested  in  the  penal  branch  of  the  law 
than  in  the  civil.  This,  again,  arises  from  the  double 
fact  that  the  civil  law  is  far  more  varied  and  compli- 
cated, consequently  more  attractive  to  a  judicial 
mind,  and  that  the  civil  cases  are  far  more  remunera- 
tive. How  much  the  difiiculty  to  be  solved  consti- 
tutes the  attraction  for  the  lawj'er,  we  may  see  from 
the  flict  that  very  few  professional  lawyers  take  an 
interest  in  the  punishment  itself.  A  penal  case  has 
attraction  for  them  so  long  as  it  is  undecided,  but 


has  been  disallowed  again  of  late  I  don't  know.  Nor  can  it  be  of 
very  great  importance  in  a  country  in  which  the  "^tatc  of  siege"' 
and  martial  law  scorn  to  be  perr.uuieiit. 


AND  SELF-OOVERXMEXT.  91 

what  imprisonment  follows,  if  imprisonment  has 
been  awarded,  interests  them  little.  Very  few  law- 
yers have  taken  a  lead  in  the  reform  of  criminal 
law  and  in  prison  discipline,  the  noble  sir  Samuel 
Romilly  always  excepted. 

Among  the  points  which  characterize  a  foir  and 
sound  penal  trial  according  to  our  advancement  in 
political  civilization,  we  would  designate  the  follow- 
ing: No  intimidation  before  the  trial  or  attempts  by 
artifice  to  induce  the  prisoner  to  confess ;  a  contri- 
vance which  protects  the  citizen  even  against  being 
placed  too  easily  into  a  state  of  accusation ;  the  full- 
est possible  realization  of  the  principle  that  every 
man  is  held  innocent  until  proved  to  be  otherwise, 
and  bail ;  a  total  discarding  of  the  principle  that  the 
more  heinous  the  imputed  crime  is,  the  less  ought 
to  be  the  protection  of  the  prisoner,  but  on  the  con- 
trary the  adoption  of  the  reverse ;  a  distinct  indict- 
ment, and  the  acquaintance  of  the  prisoner  with  it, 
sufficiently  long  before  the  trial,  to  give  him  time 
for  preparing *the  defence ;  that  no  one  be  held  to 
incriminate  himself;  the  accusatorial  process,  with 
jury  and  publicity,  therefore  an  oral  trial  and  not 
a  process  in  writing;  counsel  or  defensors  of  the 
prisoner ;  a  distinct  theory  or  law  of  evidence,  and 
no  hearsay  testimony ;  a  verdict  upon  evidence  alone 
and  pronouncing  guilty  or  not  guilty ;  a  punishment 
in  proportion  to  the  ofi'ence  and  in  accordance  with 
common  sense  and  justice  ;*  especially  no  punitory 


^  The  iilea  expressed  l)y  Dr.  Palcy  rey^nrding  tliis  point  is  re- 
volting.    He  snys,  iu  his  Political  Pliilosopliy,  timt  we  may  choose 


92  ON  CIVIL  LIBERTY 

imprisonment,  whicli  necessarily  must  make  tlie 
prisoner  worse  than  he  was  when  he  fell  into  the 
hands  of  government,  nor  cautionary  imprisonment 
before  trial,  which  by  contamination  must  advance 
the  prisoner  in  his  criminality ;  and  that  the  punish- 
ment adapt  itself  as  much  as  possible  to  the  crime 
and  criminality  of  the  offender  f  that  nothing  but 
what  the  law  demands  or  allows  be  inflicted,^  and 


between  two  systems,  the  one  with  fair  punishments  always  applied, 
the  other  with  very  severe  punishments  occasionally  applied.  He 
thus  degrades  penal  law,  from  a  law  founded  above  all  upon  strict 
principles  of  justice,  to  a  mere  matter  of  prudential  expediency, 
putting  it  on  a  level  with  military  decimation. 

^  Lieber's  Popular  Essay  on  Subjects  of  Penal  Law  and  on  Un- 
inteiTupted  Solitary  Confinement  at  Labor,  &c.  Philadelphia,  1838. 
I  have  there  treated  of  this  all-important  subject  at  some  length. 

1  Tiberius  Gracchus  erected  a  temple  in  honor  of  Liberty,  with  a 
sum  obtained  for  fines.  If  the  fines  were  just,  there  was  no  incon- 
sistency in  thus  making  penal  justice  build  a  temple  of  freedom, 
for  liberty  demands  security  and  order,  and,  therefore,  penal  justice. 

On  the  other  hand,  what  does  a  citizen  reared  in  Anglican  liberty 
feel  when  he  reads  in  a  simple  newspaper  article  in  a  French  pro- 
vincial paper,  in  1853,  the  following?  "  The  minister  of  general 
police  has  just  decided  that  Chapitel,  sentenced  by  the  court  to  six 
months'  imprisonment  for  having  been  connected  with  a  secret 
society,  and  Brayet,  sentenced  for  the  same  offence  to  two  months' 
imprisonment,  shall  be  transported  to  Cayenne  for  ten  years,  after 
the  expiration  of  their  sentence!" 

The  decree  of  the  8th  of  December,  1851,  not  a  law,  but  a  mere 
dictatorial  order,  upon  which  ten  years'  transportation  are  added  by 
way  of  "ridei*"  to  a  few  months'  imprisonment  adjudged  by  the 
courts  of  law,  is  this  : 

"  Article  1.  Every  individual  placed  under  the  surveillance  of  the 
high  police,  who  shall  be  found  having  broken  his  assigned  limits  of 
residence,  may  be  transported,  by  way  of  general  safety,  to  one  of 
the  penitentiary  colonies,  at  Cayenne  or  in  Algeria. 

"Tlie  duration   of  transportntion  shall  l>e  five  years  or  less,  and 


AND  SELF-OOVEllNMEXT.  93 

tliat  all  tliat  the  law  demands  be  iunicted — no  arbi- 
trary injudicious  pardoning,  wliicli  is  a  direct  inter- 
ference with  the  government  of  law. 

The  subject  of  pardoning  is  so  important,  espe- 
cially in  our  country,  that  I  have  deemed  it  advisable 
to  add  a  i)aper  on  pardoning,  which  the  reader  will 
find  in  the  a})pendix. 

Perhaps  there  are  no  points  so  important  in  the 
})cnal  trial  in  a  free  country,  as  the  principle  that  no 
one  shall  be  held  to  incriminate  himself,  that  the 
indictment  as  well  as  the  verdict  must  be  definite 
and  clear,  and  that  no  hearsay  evidence  be  admitted. 
Certainly  none  are  more  essential. 

A  great  lawyer  and  excellent  man,  sir  Samuel 
Eomilly,  justly  says,  that  if  the  ascertaining  of  truth 


ten  years  or  more."  (We  translate  literally  and  correctly,  whatever 
the  reader  may  think  of  this  sentence,  wliicli  would  be  very  droll, 
were  it  not  very  sad.) 

"Article  2.  The  same  measure  shall  be  applicable  to  individuals 
found  to  bo  guilty  of  having  formed  part  of  a  secret  society." 

The  French  of  the  last  sentence  is :  individua  reconnus  conpable 
d' avoir  fait  partie  d'une  societe  sccrcle.  This  recoyinus  (found,  acknow- 
ledged) is  of  a  sinister  import.  For  the  question  is,  Found  by  whom  ? 
Of  course  not  only  by  the  courts,  for  finding  a  man  guilty  by  pro- 
cess of  law  is  in  French  convaiicre.  The  reconnoitre,  therefore, 
was  used  to  include  the  police,  or  any  one.  So  that  wc  arrive  at 
this  sti'iking  fact:  The  despot  may  add  an  enormous  punislimcnt  to 
a  legal  sentence,  as  iu  the  cited  case,  or  he  may  award  it,  or  rather 
the  minister  of  police  under  him  maj'  do  it,  without  trial,  upon  mere 
police  information.  Two  hundred  j-ears  ago,  the  English  declared 
executive  transportation  beyond  the  seas,  or  deportation,  to  be  an 
unwarranted  grievance ;  and  hei'e  wc  have  it  again,  no  doubt  in 
imitation  of  the  P.oinan  imjicrial  times  (the  saddest  iu  all  histoi-y), 
in  t!ic  middle  of  liic  niuctccnlli  century. 


94  ON  CIVIL  LIBERTY 

and  meting  ont  of  justice  is  the  object  of  the  trial, 
no  possible  objection  can  be  taken  against  it  on 
principle.  But  there  is  this  difficulty,  that  if  judges 
themselves  question,  they  become  deeply  interested 
in  the  success  of  their  own  cross-examinations,  they 
become  biased  against  the  prisoner  should  he  thwart 
them,  or  turn  questions  into  ridicule.  Eomilly 
makes  this  remark  after  having  actually  seen  this 
result  in  France,  where  it  is  always  done  (witness 
Mad.  Lafarge's  trial,  or  any  French  trial  of  import- 
ance), and  certainly  often  with  success,'  Or  let  us 
observe  the  English  some  centuries  back. 

In  the  inquisitorial  process,  it  is  not  only  done, 
but  the  process  depends  upon  it. 

There  are  other  dangers  connected  with  it.  An 
accused  man  cannot  feel  that  perfect  equanimity  of 
mind  which  alone  might  secure  his  answers  against 
suspicion,  I  know  from  personal  experience  how 
galhng  it  is  to  see  your  most  candid  answers  rewarded 
with  suspicions  and  renewed  questions,  if  the  subject 
is  such  that  you  cannot  possibly  at  once  clear  up  all 
doubts.  It  ought  never  to  be  forgotten  that  the 
accused  person  labors  under  considerable  disadvant- 
ages, merely  by  the  fact  that  he  is  accused.  Bully- 
ing and  oppressive  judges  were  common  in  England 
when  the  principle  was  not  yet  settled  that  no  one 
shall  be  held  to  incriminate  himself.  The  times 
of  the  Stuarts  furnish  us  with  manv  instances  of 


*  Sir  Samuel  Romilly's  Memoirs,  vol.  i.  p.  315,  2J  cd.,  London, 
1840. 


AND  SELF-GOVERNMENT,  95 

altercations  in  the  court,  between  the  judge  and 
the  prisoner,  and  of  judicial  browbeating  to  the 
detriment  of  all  justice. 

The  trial  of  Elizabeth  Grant,  the  aged  and  deaf 
ba})tist  woman,  who  had  given  a  night's  rest  under 
her  roof  to  a  soldier  of  Monmouth's  dispersed  army, 
under  chief-justice  Jones,'  may  serve  as  an  instance. 

It  is  among  other  reasons  for  this  very  fact  of 
prisoners  on  trial  being  asked  by  the  French  judge 
about  the  fact  at  issue,  his  whereabouts  at  the  time, 
his  previous  life,  and  a  number  of  things  which 
throw  suspicion  on  the  prisoner,  although  uncon- 
nected with  the  question  at  issue,  that  Mr.  Bdranger 
says,  in  a  work  of  just  repute :  "  We,"  that  is  the 
French,  "have  contented  ourselves  to  place  a  magni- 
ficent frontispiece  before  the  ruins  of  despotism ;  a 
deceiving  monument,  whose  aspect  seduces,  but 
which  makes  one  freeze  with  horror  when  entered. 
Under  liberal  appearances,  with  pompous  words  of 
juries,  public  debates,  judicial  independence,  indi- 
vidual liberty,  we  are  slowly  led  to  the  abuse  of  all 
these  things,  and  the  disregard  of  all  rights ;  an  iron 
rod  is  used  ^vith  us,  instead  of  the  stafi"  of  justice.'"" 

There  are  peculiar  reasons  against  examining  the 
prisoner  in  i)ublic  trials,  and  many  peculiar  to  the 
secret  trial.  Although  it  cannot  be  denied  that  often 
the  questioning  of  the  prisoner  may  shorten  the  trial 
and  lead  to  condign  conviction,  which  otherwise  may 


9  riiilipps's  State  Trials,  vol.  ii.  '2l\  et  ho«i.,  ami,  indeed,  in  nuuiy 
pai-ts  of  this  work. 

'"  Berangor  Do  la  Jiibticc  (,'riniinclle  de  Trance,  Pari;-,  1818, 
page  2. 


96  ON  CIVIL  LIBERTY 

not  be  tlic  result,  it  is  nevertheless  right  that  most, 
perhaps  all  our  state  constitutions  have  adopted  this 
principle.  It  is  just ;  it  is  dignified ;  and  it  is  fair. 
The  government  prosecutes ;  then  let  it  prove  what 
it  charges.  So  soon  as  this  principle  is  discarded, 
we  fall  into  the  dire  error  of  throwing  the  burden 
of  proving  innocence  wholly  or  partially  on  the 
prisoner ;  while,  on  the  contrary,  all  the  burden 
ought  to  lie  on  the  government,  with  all  its  power, 
to  prove  the  charged  facts.  Proving  an  offence  and 
fastening  it  on  the  offender,  is  one  important  point 
in  the  penal  trial;  but  the  method  liow  it  is  done  is 
of  equal  importance.  The  Turkish  cadi  acknow- 
ledges the  first  point  only ;  yet  what  I  have  stated  is 
not  only  true  with  reference  to  the  jural  society,  it 
is  even  true  in  the  family  and  the  school. 

It  is  an  interesting  fact  for  the  political  philosopher 
that,  while  the  Anglican  race  thus  insists  on  the 
principle  of  non-self-incrimination,  the  whole  Chinese 
code  for  that  people  under  a  systematic  mandarinism 
is  pervaded  even  by  the  principle  of  self-accusation 
for  all,  but  especially  for  the  mandarins. 

The  principle  that  on  government  lies  the  burden 
of  proving  the  guilt,  leads  consistently  to  the  other 
principle  that  the  verdict  must  be  definite  and 
absolute.  Hence  these  two  important  facts:  The 
verdict  must  be  guilty  or  not  guilty,  and  no  absolutio 
ab  instantia,  as  it  is  called  in  some  countries  of  the 
European  continent,  that  is  to  say,  no  verdict  or 
decision  which  says,  according  to  the  present  trial 
we  cannot  find  you  guilty,  but  there  is  strong  suspi- 


AND  SELF-GOVEKXMKNT.  'J  i 

cion,  and  we  may  take  you  up  another  time;"  nor 
any  "  not  proven,"  as  the  Scottish  trial  admits  of, 
ought  to  be  permitted.  "Not  proven,"  does  not 
indeed  allow  a  second  trial,  but  it  expresses :  You 
are  free,  although  we  have  very  strong  suspicion. 
Secondly,  the  main  principle  leads  to  the  fact  that 
no  man  ought  to  be  tried  twice  for  the  same  ofience. 
This  is  logical,  and  is  necessary  for  the  security  of 
the  individual.  A  person  might  otherwise  be  ha- 
rassed by  the  government  until  ruined.  Repeated 
trials  for  charges,  which  the  government  knows 
very  well  to  be  unfounded,  are  a  common  means 
resorted  to  by  despotic  executives.  Frequently  such 
procedures  have  led  the  persecuted  individual  to 
compound  with  government  rather  than  lose  all  his 
substance. 

The  Anglican  race,  therefore,  justly  makes  it  an 
elementary  principle  of  its  constitutional  law,  that 
"  no  man  shall  be  tried  twice  for  the  same  offence." 

I  have  said  that  a  fair  trial  for  freemen  requires 
that  the  preparatory  steps  for  the  trial  be  as  little 
vexatious  as  possible.  They  must  also  acknow- 
ledge the  principle  of  non-incrimination.  This  is 
disregarded  on  the  whole  of  the  European  continent. 
The  free  range  of  police  power,  the  mean  tricks 
resorted  to  by  the  "instructing"  judge  or  officer, 
before   the   trial,   in   order   to   bring   the    prisoner 


"  The  render  will  find  in  the  appendix  a  paper  on  the  subject  of 
some  continental  trials,  and  the   admission  of  half  and  quarter 
proof  and  proportional  punishment. 
VOL.  I. — i) 


98  ON  CIVIL  LIBERTY 

to  confession,  are  almost  inconceivable/^  and  tliey 
are  the  worse,  because  applied  before  the  trial,  when, 
therefore,  the  prisoner  is  not  surrounded  by  those 
protections  which  the  trial  itself  grants.  With  re- 
ference to  this  point,  and  in  order  to  modify  what 
I  have  stated  regarding  Greek  penal  trials,  I  wish  to 
mention  the  interesting  fact  that  "  the  prosecutor,  in 
Athens,  who  failed  to  make  good  his  charge,  incur- 
red certain  penalties,  unless  he  obtained  at  least  one- 
fifth  of  the  votes  in  his  favor.  In  public  suits,  he 
forfeited  1,000  drachmae  to  the  state,  and  could  never 
again  institute  a  similar  suit.  The  same  punishment 
was  incurred  if  he  declined  to  proceed  with  the  case. 
In  private  suits,  he  paid  the  defendant  one-sixth  of 
the  amount  of  the  disputed  property,  as  a  compensa- 
tion for  the  inconvenience  he  had  suffered  in  person 
or  character."  '^ 

Sir  Samuel  Eomilly  had  the  intention  of  proposing 
in  a  similar  spirit,  a  bill  by  which  an  acquitted  pri- 
soner, having  been  prosecuted  for  felony,  should  be 
compensated  by  the  countj^,  at  the  discretion  of  the 
court,  for  loss  of  time  and  the  many  evils  endured. 
Indeed,  he  thought  that  far  more  ought  to  be 
done."     Leave  was  given  to  bring  in  the  compensa- 


'2  This  may  be  amply  seen  in  the  reports  on  French  trials,  and, 
among  other  works,  in  Fenerbach's  collection  of  German  criminal 
trials. 

'3  Herman,  Political  Antiquit.  of  Greece,  Oxon.  1836,  sect.  144, 
where  more,  and  all  the  necessary  authorities  can  be  found. 

'^  Memoirs  of  the  Life  of  Sir  Samuel  RomiUy,  '2d  edition, 
London,  1840,  vol.  ii.,  page  235.  Strange  enough;  there  is  an 
English  law,  26  George  II.,  sec.  36,  according  to  which  prosecutors 


AND  SELF  GOVERXMENT.  99 

tion  bill,  but  it  was  afterwards  withdrawn.  It  is 
evident  that  the  great  difficulty  would  lie  in  the  fact 
that  the  discretion  of  the  judge  would  establish  at 
once  a  distinction  between  the  verdicts,  similar  to 
that  produced  by  the  Scottish  "  not  guilty"  and  "  not 
proven."  To  compensate,  however,  all  acquitted  per- 
sons would  be  very  mischievous  if  we  consider  how 
many  persons  are  acquitted  who  nevertheless  are 
guilty.  Indeed,  it  might  well  be  asked  whether  the 
fear  of  paying  compensation  would  not  in  some  cases 
induce  the  jury  to  find  more  easily  a  verdict  of 
guilty. 

The  professional  reader  may  think  that  I  have  not 
sufficiently  dwelt  upon  some  essential  points  of  a 
sound  penal  trial,  for  instance,  on  publicity,  or  the 
independence  of  counsel.  He  will  find,  however, 
that  these  subjects  are  treated  of  in  other  parts  of 
this  work.  The  arrangement  could  not  be  made 
otherwise. 


are  to  have  the  expenses  of  their  prosecution  reimbursed,  and  a 
compensation  afforded  them  for  their  trouble  and  loss  of  time.  This 
is  evidently  to  induce  people  freely  to  prosecute ;  but  no  guarantee 
is  given  on  the  other  hand  against  undue  prosecution,  and  a  com- 
pensation for  the  trouble  and  loss  of  time  of  tlie  acquitted  person. 


100  ON  CIVIL  TJBERTY 


CHAPTER    VIII. 

HIGH  TREASON. 

5,  That  penal  trial  which  is  the  most  important 
with  reference  to  civil  liberty,  and  in  which  the  ac- 
cused individual  stands  most  in  need  of  peculiar  pro- 
tection by  the  law,  is  the  trial  for  treason. 

If  a  well-guarded  penal  trial  in  general  forms  an 
important  element  of  our  liberty,  because  the  indi- 
vidual is  placed  opposite  to  public  power,  a  carefully 
organized  trial  for  treason  is  emphatically  so.  In 
the  trial  for  treason  the  government  is  no  longer 
theoretically  the  prosecuting  party,  as  it  may  be  said 
it  is  in  the  case  of  theft  or  assault,  but  government 
is  the  really  offended,  irritated  party,  endowed  at  the 
same  time  with  all  the  force  of  the  government,  to 
annoy,  persecute,  and  often  to  crush.  Governments 
have,  therefore,  been  most  tenacious  in  retaining 
whatever  power  they  could  in  the  trial  for  treason ; 
and,  on  the  other  hand,  it  is  most  important  for  the 
free  citizen  that,  in  the  trial  for  treason,  he  should 
not  only  enjoy  the  common  protection  of  a  sound 
penal  trial,  but  far  greater  protection.  In  despotic 
countries  we  always  find  that  the  little  protection 
granted  in  common  criminal  trials,  is  withheld  in 
ti'ials  for    treason :    in   free   countries,   at   least   in 


AND  SELF-GOVERXMENT.  101 

England  and  the  United  States,  greater  protection  is 
granted,  and  more  caution  demanded,  in  trials  for 
treason  than  in  the  common  penal  process.  The 
trial  for  treason  is  a  gauge  of  liberty.  Tell  us  how 
they  try  peoj^le  for  treason,  and  we  will  tell  you 
whether  they  are  free.  It  redounds  to  the  glory  of 
England  that  attention  was  directed  to  this  subject 
from  early  times,  and  that  guarantees  were  granted 
to  the  prisoner  indicted  for  treason,  centuries  before 
they  were  allowed  to  the  person  suspected  of  a  com- 
mon offence ;  and  to  that  of  the  United  States,  that 
they  plainly  defined  the^  crime  of  treason,  and 
restricted  it  to  narrow  limits,  in  their  very  constitu- 
tion.    This  great  charter  says,  section  III. : 

1.  "  Treason  against  the  United  States  shall  con- 
sist only  in  levying  war  against  them,  or  in  adhering 
to  their  enemies,  giving  them  aid  and  comfort.  No 
person  shall  be  convicted  of  treason,  unless  on  the 
testimony  of  two  witnesses  to  the  same  overt  act,  or 
confession  in  open  court. 

2.  "  Congress  shall  have  power  to  declare  the  pun- 
ishment of  treason;  but  no  attainder  of  treason  shall 
work  corruption  of  blood  or  forfeiture,  except  during 
the  life  of  the  person  attainted." 

Whether  political  societies,  not  so  fortunately  situ- 
ated as  ourselves,  yet  equally  prizing  civil  liberty, 
might  safely  restrict  the  crime  of  treason  to  such  nar- 
row limits  as  the  wise  and  bold  framers  of  our  con- 
stitution have  done,  is  a  subject  which  belongs  to  a 
branch  of  political  science  that  does  not  occupy  us 
here ;  but  it  may  be  asserted  that  several  cases  have 
actually  occurred  in  the  United  States,  in  which  all 

9* 


102  ON  CIVTL  LIBERTY 

nations  except  the  American  would  have  considered 
the  provisions  of  onr  constitution  insufficient,  and  in 
which  nevertheless  they  have  been  found  adequate. 

We  may  consider  the  American  law  of  high  trea- 
son as  the  purest  in  existence,  and  it  shows  how 
closely  the  law  of  treason  is  connected  "with  civil 
liberty.  Chief-justice  Marshall  said:  "  As  there  is  no 
crime  which  can  more  excite  and  agitate  the  passions 
of  men  than  treason,  no  charge  demands  more  from 
the  tribunal  before  which  it  is  made  a  deliberate  and 
temperate  inquiry.  Whether  the  inquiry  be  directed 
to  the  fact  or  to  the  law,  none  can  be  more  solemn, 
none  more  important  to  the  citizen  or  to  the  govern- 
ment; none  can  more  affect  the  safety  of  both."' 

All  constitutions  of  the  diflerent  American  states, 
which  mention  treason,  have  the  same  provision. 
Those  that  say  nothing  special  about  it,  have  the  same 
by  law,  and  in  conformity  with  the  principles  which 
the  respective  constitutions  lay  down  regarding  penal 
trials.^  None  admit  of  retrospective  laws,  of  legisla- 
tive condemnations  of  individuals,  or  of  attainders. 

The  course  which  the  law  of  treason  takes  is  this : 
At  first  there  exists  no  law  of  treason,  because  the 
crime  is  not  yet  separated  from  other  offences,  as 


'  The  Writings  of  John  Marshall,  p.  42.  Ex  parte  Bollraan  ami 
Swartwout. 

2  Judge  Story  says :  "  A  state  cannot  take  cognizance,  or  punish 
the  offence  (i.  e.  treason  against  the  United  States) ;  whatever  it 
may  do  in  relation  to  the  offence  of  treason,  committed  exclusively 
against  itself,  if  indeed  any  case  can,  under  the  constitution,  exist, 
which  is  not  at  the  same  time  treason  against  the  United  States." 
Chap.  28,  vol.  iii.  of  Commentaries  on  the  runstitution  of  the  United 
States, 


AND  SELF-GOVERNMENT.  103 

indeed  the  penal  and  civil  Laws  are  not  separated  in 
the  earliest  periods.  The  Chinese  code,  so  minute  in 
many  respects,  mixes  the  two  branches,  and  debtors 
are  treated  as  criminal  olYenders,  reminding  us,  in 
this  particular,  of  the  early  Roman  law.  When  first 
treason  comes  to  be  separated  from  the  other  offences, 
it  is  for  the  twofold  purpose  of  inflicting  more  excru- 
ciating pains,  and  of  withholding  from  the  trial  the 
poor  protection  which  is  granted  to  persons  indicted 
for  common  offences.  The  dire  idea  of  a  crimen 
cxceptum  gains  ground.  The  reasoning,  or  rather 
unreasoning,  is  that  the  crime  is  so  enormous  that  the 
criminal  ought  not  to  have  the  same  chances  of  escape, 
thus  assuming  that  the  accused,  yet  to  be  proved  to 
be  a  criminal,  is  in  fact  a  criminal,  and  forgetting,  as 
has  been  indicated  before,  that  the  graver  the  accusa- 
tion is,  and  the  severer  therefore  the  punishment,  in 
case  of  established  guilt,  may  be,  the  safer  and  more 
guarded  ought  to  be  the  trial-  It  is  a  fearful  incon- 
sistency, very  plain  when  thus  stated,  yet  we  find 
that  people  continually  fall  into  the  same  error,  even 
in  our  own  da3^s.  How  often  is  Lynch  law  resorted 
to  on  the  very  pica  that  the  crime,  still  a  suspected 
one,  is  so  infiimous  that  the  regular  course  of  law  is 
too  slow  or  too  doubtful!  The  same  error  prevailed 
regarding  witchcraft.  The  pope  declared  it  a  crimen 
exceptum — too  abominable  to  be  tried  by  common 
process.  Protestant  governments  followed  the  ex- 
ample. 

At  the  same  time  we  find  that,  at  the  period  of 
which  we  are  now  speaking,  the  law  of  treason  is 
vastly  extending,  and  all  sorts  of  offences,  either 
becauso   cousiilcrod    ]i(>fnlinrlv   hoinous.    or   beonuso 


lU-i:  OX  CIVIL  LIBEKTY 

peculiarly  displeasing  to  the  public  power,  are  drawn 
within  the  meaning  of  treason.  A  list  of  all  the 
offences  which  at  some  time  or  other  have  been  con- 
sidered to  amount  to  treason,  from  the  crime  of 
"offended  divine  majesty,"  (crimen  Isesse  majestatis 
divinje,)  in  which  stealing  from  a  church  was  included, 
to  the  most  trivial  common  offences,  and  which  I  have 
made  out  for  my  own  use,  would  astound  the  reader, 
if  this  were  the  place  to  exhibit  it. 

When  political  civilization  advances,  and  people 
come  to  understand  more  clearly  the  object  and  use 
of  government,  as  well  as  the  dangers  which  threaten 
society  and  the  individual,  the  very  opposite  course 
takes  place.  More  protection  is  granted  to  the  per- 
son indicted  for  treason,  than  in  common  penal  trials, 
and  the  meaning  of  treason  is  more  and  more  nar- 
rowed. The  definition  of  treason  is  made  clearer, 
and  constructive  treason  is  less  and  less  allowed,  until 
we  arrive  at  our  own  bright  law  of  treason. 

It  is  thus  that  the  law  of  treason  becomes,  as  I 
stated  before,  a  symptomatic  fact,  and  is  in  politics 
what  roads,  the  position  of  woman,  public  amuse- 
ments, the  tenure  of  land,  architecture,  habits  of 
cleanliness,  are  in  other  spheres.  They  are  gauges 
of  social  advancement.  The  more  I  studied  this 
subject,  the  more  I  became  convinced  of  the  instruc- 
tion to  be  derived  from  the  history  of  the  law  of 
treason  in  ancient  times,  the  middle  ages,  and  modern 
periods,  and  it  was  my  intention  to  append  a  paper 
to  this  work,  which  should  give  a  survey  of  the 
whole.  When,  however,  I  came  to  arrange  my  long 
collected  materials,  I  found,  although  firmly  resolved 
to  disregard  an  author's  partiality  for  materials  of 


AND  SELF-GOVERXMEXT.  105 

interest  once  collected,  and  to  restrict  the  paper  to  the 
merest  outlines,  that  it  would  be  impossible  to  do  any 
justice  to  the  subject  without  allowing  to  that  parti- 
cular portion  a  disproportionally  large  place.  I  de- 
cided, therefore,  to  leave  the  subject  for  a  separate 
work. 

In  conclusion  I  would  repeat,  experience  proves 
that  not  only  are  all  the  guarantees  of  a  fair 
penal  trial  peculiarly  necessary  for  a  fair  trial  for 
treason,  but  that  it  requires  additional  safeguards; 
and,  of  the  one  or  the  other,  the  following  seem  to 
me  the  most  important : 

The  indictment  must  be  clear  as  to  facts  and  time, 
when  the  indicted  act  has  been  committed ; 

The  prisoner  must  have  the  indictment  a  sufficient 
time  before  the  trial,  so  as  to  be  able  to  prepare  for  it ; 

He  must  have  a  list  of  the  witnesses  against  him, 
an  equal  time  beforehand ; 

A  sufficient  time  for  the  trial  must  be  allowed ;  and 
the  prisoner  must  not  be  seized,  tried,  and  executed, 
as  Cornish  was,  in  1685,  in  a  week ; 

Counsel  must  be  allowed,  as  a  matter  of  course ; 

The  judges  must  be  impartial  and  independent,  and 
ample  challenges  must  be  allowed;  peers  must  judge. 
Consequently,  judges  must  not  be  asked  by  the 
executive,  before  the  trial,  what  their  judgment 
would  be  if  such  or  such  a  case  should  be  brought 
before  them,  as  was  repeatedly  done  by  the  Stuarts ; 

Of  all  trials,  hearsay  must  be  excluded  from  the 
trial  for  treason ; 

Facts,  not  tendencies ;  acts,  not  words  or  papers 
written  by  the  indicted  person,  and  never  allowed  to 
leave  his  desk,  must  be  cliarL'"od  ; 


100  ON  CIVIL  LIBERTY 

Perfect  publicity  must  take  place  from  beginning 
to  end,  and  reporters  must  not  be  excluded ;  for  it  is 
no  publicity  in  a  populous  country  that  allows  only 
some  twenty  or  forty  bystanders ; 

The  trial  must  be  in  presence  of  the  prisoner ; 

Several  witnesses  must  be  required  to  testify  to  the 
same  fact,  and  the  witnesses  for  the  prisoner  must  be 
as  much  upon  oath  as  those  for  the  government ; 

Confession,  if  unconditionally  admitted  at  all,  must 
at  least  be  in  open  court ; 

There  must  be  no  physical  nor  psychical  torture ; 

There  must  be  good  witnesses,  not  known  villains 
or  acknowledged  liars,  as  Titus  Gates,  or  lord  How- 
ard against  lord  Russell. 

The  judges  must  not  depend  upon  the  executive ; 

No  evidence  must  be  admitted  which  is  not 
admitted  in  other  trials. 

There  must  be  a  fixed  punishment ; 

There  must  be  no  constructive  treason ; 

And  the  judges  must  not  be  political  bodies. 

These  guarantees  have  been  elaborated  by  statute 
and  common  law,  through  periods  of  freedom  and 
tyranny,  by  the  Anglican  race.  The  English  law 
grants  these  safeguards,  except  indeed  the  last  to 
lords,  because,  according  to  the  principle  that  every 
one  must  be  tried  by  his  peers,  a  lord  is  tried  by 
the  house  of  lords.  It  showed  great  wisdom  that 
the  framers  of  our  constitution  did  not  assign  the 
trial  for  treason  to  the  senate,^  as  the  former  French 
constitution  appointed  the  house  of  peers  to  be  the 


^  All  the  American  trials  for  treason  are  collected  in  Francis 
Wharton's  State  Trials  of  the  Unitea  States,  Philadelphia,  1840. 


AND  SELF-GOVEIIXMKNT.  107 

court  for  high  treason.  American  impeachments  are 
tried  indeed  by  the  senate,  but  it  will  be  observed 
that  the  American  trial  of  impeachment  is  not  a 
penal  trial  for  offences,  but  a  political  institution, 
trying  for  political  capacity.  The  senate,  when  sit- 
ting as  a  court  to  try  impeachment,  can  only  remove 
from  office,  whatever  the  crime  may  have  been ;  and 
the  impeached  person  can  be  penally  tried  after  the 
senate  has  removed  him  from  office.  In  its  political 
character,  then,  but  in  no  other  point,  the  American 
impeachment  resembles  the  Athenian  ostracism,which 
was  likewise  a  political  and  not  a  penal  institution. 
The  English  impeachment  is  a  penal  trial. 

The  trials  for  treason  going  on  in  many  countries 
of  the  European  continent,  especially  in  Naples  and 
the  Austrian  dominions,  are  fair  illustrations  ex  con- 
verso  of  what  has  been  stated  here."* 

The  trial  for  treason  has  been  treated  of  in  this 
place  because  naturally  connected  with  the  subject  of 
the  penal  trial  in  general.  Otherwise  it  would  have 
been  more  properly  enumerated  among  the  guarantees 
connected  more  especially  with  the  general  govern- 
ment of  a  free  country.  We  return,  therefore,  once 
more  to  the  guarantees  of  individual  rights.* 


■^  Tlie  reader  is  probably  acquainted  with  the  Right  Hon.  Mr. 
Gladstone's  pamphlet  on  Neapolitan  trials  for  treason,  published  in 
1851.     It  is  but  a  sample. 

^  1  ■would  mention  for  the  younger  student  that  when  I  study 
pervading  institutions,  or  laws  and  principles  whicli  form  run- 
ning threads  through  the  whole  web  of  history,  I  find  it  useful  to 
make  chroiujlogical  tables  of  their  chief  progresses  and  reverses. 
They  are  very  suggestive,  and  strikingly  show  what  we  owe  to  tiie 
continuity  of  human  society.  None  of  these  tables  has  been  more 
instructive  to  me  than  that  on  the  history  of  the  law  of  treason. 


108  ON  CIVIL  LIBERTY 


CHAPTER    IX. 

COMMUNION.     LOCOMOTION,  EMIGRATION. 

6.  The  freedom  of  communion  is  one  of  the  most 
precious  and  necessary  rights  of  the  individual,  and 
one  of  the  indispensable  elements  of  all  advancing 
humanity — so  much  so,  indeed,  that  it  is  one  of  those 
elements  of  liberty,  which  would  have  never  been 
singled  out,  had  not  experience  shown  that  it  forms 
invariably  one  of  the  first  objects  of  attack,  when 
arbitrary  power  wishes  to  establish  itself,  and  one  of 
the  first  objects  of  conquest,  when  an  unfree  people 
declares  itself  free. 

I  have  dwelled  on  the  primordial  right  of  com- 
munion in  the  Political  Ethics  at  great  length,  and 
endeavored  to  show  that  the  question  is  not  whether 
free  communion  or  a  fettered  press  be  conducive  to 
more  good,  but  that  ever3'thing  in  the  individual 
and  in  nations  depends  in  a  great  measure  upon 
communion,  and  that  free  communion  is  a  pre-exist- 
ing condition.  The  only  question  is,  how  to  select 
the  best  government  with  it,  and  shielding  it,  unless, 
indeed,  we  were  speaking  of  tribes  in  a  state  of 
tutelage,  ruled  over  bv  some  highlv  advanced 
nation. 


AND  SELF-GOVKUN.MKNT.  lO'J 

In  this  place  we  only  enumerate  freedom  of  com- 
munion as  one  of  the  primary  elements  of  civil 
liberty.  It  is  an  element  of  all  civil  liberty.  No 
one  can  imagine  himself  free  if  his  communion  Avitli 
his  felloAvs  is  interrupted  or  submitted  to  surveil- 
lance ;  but  it  is  the  Anglican  race  Avhich  first  esta- 
blished it  on  a  large  scale,  broadly  and  nationally 
acknowledged. 

Free  nations  demand  and  guarantee  free  commu- 
nion of  speech,  the  right  of  assembling  and  publicly 
speaking,  for  it  is  communion  of  speech  in  this 
form  which  is  peculiarly  exposed  to  abridgment  or 
suppression  by  the  public  power;  they  guarantee 
the  liberty  of  the  press,  and,  lastly,  the  sacredness  of 
epistolary  communion. 

It  is  a  very  striking  fact  that,  although  the  consti- 
tution of  the  United  States  distinctly  declares  that 
the  government  of  the  United  States  shall  only  have 
the  power  and  authority  positively  granted  in  that 
instrument,  so  that,  in  a  certain  respect,  it  was  unne- 
cessary to  say  what  the  government  should  not  have 
the  right  to  do,  still,  in  the  very  first  article  of  the 
Additions  and  Amendments  of  the  Constitution,  con- 
gress is  forbidden  to  make  any  "law  respecting  an 
establishment  of  religion,  or  prohibiting  the  free 
exercise  thereof;  or  abridging  the  freedom  of  speech, 
or  of  the  press,  or  the  right  of  the  people  peaceably 
to  assemble,  and  to  petition  the  government  f(jr  a 
redress  of  grievances." 

The  reader  will  keep  in  mind  that  the  framers  of 
our  constitution  went  out  of  their  way  and  preferred 
to  appear  inconsistent,  rather  than  omit  the  enimic- 
VOL.  I.  —10 


110  ox  CIVIL  LIBKKTY 

ration  of  those  im})ortarit  liberties,  that  of  conscience, 
as  it  is  generally  called,  that  of  communion,  and  of 
petitioning ;  and  the  reader  will  remember,  moreover, 
that  these  rights  were  added  as  amendments.  They 
must  then  have  appeared  very  important  to  those 
who  made  our  constitution,  both  on  account  of  their 
intrinsic  importance,  and  because  so  often  attacked 
by  the  power-holders.  Let  the  reader  also  remember 
that,  if  it  be  thus  important  to  abridge  the  power  of 
government  to  interfere  with  free  communion,  it  is 
at  least  equally  important  that  no  person  or  number 
of  men  interfere,  in  any  manner,  with  this  sacred 
right.  Oppression  does  not  come  from  government 
or  official  bodies  alone.  The  worst  oppression  is  of 
a  social  character,  or  by  a  multitude. 

The  Eng-lish  have  established  the  right  of  com- 
munion,  as  so  many  other  precious  rights  by  com- 
mon law,  by  decisions,  by  struggles,  by  revolution. 
All  the  guarantee  they  have  for  the  unstinted  enjoy- 
ment of  the  right  lies  in  the  fact  that  the  whole 
nation  says  with  one  accord,  as  it  were :  Let  them 
try  to  take  it  away. 

It  is  the  same  with  our  epistolary  communion. 
The  right  of  freely  corresponding  is  unquestionably'' 
one  of  the  dearest  as  well  as  most  necessary  of 
civilized  man;  yet,  our  foreftithers  were  so  little 
acquainted  with  a  police  government,  that  no  one 
thou2:ht  of  enumerating  the  sacredness  of  letters 
along  with  the  freedom  of  speech  and  the  liberty  of 
the  press.  The  liberty  of  correspondence  stands 
between  the  two :  free  word,  free  letter,  free  print. 
The  framers  did  not  think  of  it,   as  the  first  law- 


AND  SELF-GOVERXMEXT.  Ill 

makers  of  Rome  are  said  to  have  omitted  the  punish- 
ment of  parricide.  Yet  we,  too,  say  :  Let  any  one 
try  to  infringe  the  sacredness  of  letters. 

In  all  the  late  struggles  for  liberty  on  the  con- 
tinent of  Europe,  the  sacredness  of  letters  was  in- 
sisted upon,  not  from  abstract  notions,  but  for  the 
very  practical  reason  that  governments  had  been 
in  the  habit  of  disregarding  it.  Of  course,  they  now 
do  so  again.  The  English  parliament  took  umbrage, 
a  few  years  ago,  at  the  liberty  a  minister  had  taken 
of  ordering  the  opening  of  letters  of  certain  political 
exiles  residing  in  England,  and  although  he  stated 
that  it  had  been  the  habit  of  all  administrations  to 
order  it  under  certain  circumstances,  he  promised  to 
abstain  in  future.  In  the  United  States  there  is  no 
})rocess  or  means  known  to  us,  not  even  by  writ  of  a 
court,  we  believe,  by  which  a  letter  could  be  extracted 
from  the  post-office,  except  by  him  to  whom  it  is  ad- 
dressed; and  as  to  the  executive  unduly  opening  let- 
ters, it  would  be  cause  for  instant  impeachment. 

Quite  recently,  in  the  montli  of  April,  1853,  it  ap- 
peared in  the  prosecution  of  several  persons  of  dis- 
tinction at  Paris,  for  giving  Avrong  and  injuri(jus 
news  to  foreign  papers,  that  their  letters  had  not 
only  been  opened  at  the  post-office,  but  that  the 
originals  had  been  kept  back,  and  copies  had  been 
sent  to  the  recipients,  with  a  postscript,  written  by 
the  government  officer,  for  the  purpose  of  fraudu- 
lently explaining  the  diffiirent  handwriting.  It 
stated  that  the  correspondent  had  a  sore  liaud. 
When  the  counsel  for  the  accused  said  that  the 
falsifvinu:  officer  ou2:ht  to  be  on  the  ])cuch  of  the  ac- 


112  ON  CIVIL  LIBERTY 

cusecl,  the  court  justified  the  prefect  of  the  police,  on 
the  ground  of  "  reasons  of  state."  No  commentary 
is  necessary  on  such  self- vilification  of  governments ; 
but  this  may  be  added,  that  these  outrages  were 
committed  even  without  a  formal  warrant  from  any 
one,  but  on  the  sole  command  of  the  police.  Are  we, 
then,  wrong  in  calling  such  governments  police 
governments  ?  It  is  not  from  a  desire  to  stigmatize 
these  governments.  It  is  on  account  of  the  prevail- 
ing principle,  and  the  stigma  is  a  natural  consequence 
of  this  principle.' 


'  In  the  decision  of  the  appellate  court  in  the  same  case  we  find 
this  to  be  the  chief  argument,  that  government  cstahlishes  post- 
oflBces,  and  cannot  be  expected  to  lend  its  hand  to  the  promotion  of 
mischief,  by  carrying  letters  of  evil  doers.  This  is  totally  fallacious. 
Government  does  not  establish  post-offices,  but  society  establishes 
them,  though  it  may  be  through  government. 

If  it  did,  it  is  not  a  benefit  done  by  a  second  party,  as  when  A 
makes  a  present  to  B,  but  government  is  simply  and  purely  an 
agent ;  and,  what  is  more,  the  right  of  establishing  post-offices  is 
not  an  inherent  attribute  of  government,  such  as  the  administra- 
tion of  justice  or  making  war.  Government  merely  becomes  the 
public  carrier,  for  the  sake  of  general  convenience.  There  are 
many  private  posts,  and  governments  without  government  post- 
offices,  for  instance,  the  republic  of  Hamburg. 

The  opening  of  letters  without  proper  warrant  is  a  frightful  per- 
version of  power,  and  though  government  should  be  able  to  get  at 
secret  machinations,  the  secret  of  letters  is  a  primordial  condition. 
Government  might,  undoubtedly,  know  many  useful  things,  if  the 
sacrcdncss  of  catholic  confession  were  broken  into:  but  that  is  con- 
sidered a  primordial  and  ante-political  condition.  So,  many  codes 
do  not  force  a  son  to  testify  against  a  father,  the  family  aflection  is 
considered  a  primoi'dial  condition.  The  very  state  of  society,  for 
which  it  is  worth  living,  is  invaded,  if  the  correspondence  is  exposed 
to  this  sort  of  government  burglary. 

The  argument  is  simply  this.     Man  is  destined  to  live  in  society, 


AND  SELF-GOVERNMENT.  118 

England,  as  may  be  supposed,  lias  not  always 
enjoyed  liberty  of  the  pi'ess.  It  is  a  conquest  of 
high  civilization,^  It  is,  however,  a  remarkable  fact, 
that  England  owed  its  transitory  but  most  stringent 
law  of  a  censorship  to  her  re|)ublican  government. 

On  Sept.  20,  1647,^  it  was  decreed  by  the  repub- 
lican government  in  England  that  no  book  hence- 
forth be  printed  without  previously  being  read  and 
permitted  by  the  public  censor,  all  privileges  to  the 
contrary  notwithstanding.  Ilouse  searches  for  ])rohi- 
bited  books  and  presses  should  be  made,  and  the  post- 
oliice  would  dispatch  innocent  books  only.  All  places 
where  printing-presses  may  exist  should  be  indicated 
by  authority.  Printers,  publishers  and  authors  were 
obliged  to  give  caution-money  for  their  names.  No 
one  was  permitted  to  harbor  a  printer  without  per- 
mission, and  no  one  permitted  to  sell  foreign  books 
without  permission.  Book-itinerants  and  ballad- 
singers  were  imprisoned  and  wliippcd.  We  are  all 
acquainted   with   Milton's   beautiful   and   searching 


united  by  converse  and  intercommuniim ;  this  is  a  l).'\sis  of  Ini- 
manity.  If  you  open  letters  you  seriously  invade  this  primary  con- 
dition. Men  are  individuals,  and  social,  destined  for  civilization 
and  united  progress,  and  the  question  is  not  wlictlier  they  may  he 
dispensed  with,  but  how  to  govern  with  them.  Governments  too  fre- 
quently act  as  though  the  government  were  the  prinuvry  condition, 
and  the  remaining  (piestion  only  was,  licw  much  may  be  spare<l  by 
government,  to  be  left  for  society  or  individuals.  The  opposite  is 
the  truth. 

*  See  Liebcr's  Letter  to  lion.  W.  C.  Preston  on  Interii:itii>nal 
Coi)ynght. 

'  The  same  year,  therefore,  in  which  ("harles  tlif  I'ir-t  \v:i>  f\i'- 
cuted. 

10* 


114  ON  CIVIL  LIBERTY 

essay  on  llic  lihorty  "f  t1u>  ])ress  against  this  censor- 
sliip. 

The  reader  who  pays  attention  to  the  events  of  bis 
own  days,  will  remember  the  law  against  the  press, 
issued  immediately  after  the  coup  d'etat  of  Louig 
Napoleon,  which  puts  the  sale  of  printing  and  litho- 
graphic presses,  copying  machines,  as  well  as  types, 
under  police  supervision,  and  which,  in  one  word, 
intercepts  all  public  communion, 

I  suppose  it  will  be  hardly  necessary  to  treat,  in 
connection  witli  the  liberty  of  communion,  of  the 
"liberty  of  silence,"  as  a  French  paper  headed  an 
article,  when,  soon  after  the  coup  d'etat,  it  was  inti- 
mated to  a  Paris  paper,  by  the  police,  that  its  total 
silence  on  political  matters  would  not  be  looked  upon 
by  government  wath  favor,  should  the  paper  insist  on 
continuing  it. 

It  would  be,  however,  a  great  mistake  to  suppose 
that  governments  alone  interfere  wdth  correspondence 
and  free  communion.  Governments  are  bodies  of 
men,  and  all  bodies  of  men  act  similarly  under 
similar  circumstances,  if  the  power  is  allowed  them. 
All  absolutism  is  the  same.  I  have  ever  observed, 
in  all  countries  in  which  I  have  lived,  that  if  party 
struggle  rises  to  factious  passion,  the  different  parties 
endeavor  to  get  hold  of  the  letters  of  their  adversa- 
ries. It  is  therefore  of  the  last  importance,  both  that 
the  secret  of  letters  and  the  freedom  of  all  commu- 
nion be  legally  protected  as  much  as  possible,  and 
that  every  true  friend  of  liberty  present  the  import- 
ance of  this  right  in  the  clearest  possible  manner  to 
his  own  mind. 


AXD  SELF-GOVERNMENT.  115 

7.  The  right  of  locomotion,  or  of  free  egress  and 
regress,  as  well  as  free  motion  within  the  eountry,  is 
another  important  individual  right  and  element  of 
liberty. 

The  strength  of  governments  was  generally  con- 
sidered, in  the  last  century,  to  consist  in  a  large 
population,  large  amount  of  money,  that  is,  specie, 
within  the  country,  and  a  large  army  founded  upon 
both.  It  was  consistent,  therefore,  that  in  countries 
in  which  individual  rights  went  for  little,  and  the 
people  were  considered  the  mere  substratum  upon 
which  the  state,  that  is,  the  government,  was 
erected,  emigration  was  considered  with  a  jealous 
eye,  or  wholly  prohibited.  Nor  can  it  be  denied  that 
emigration  may  present  itself  in  a  serious  aspect.  So 
many  people  are  leaving  Ireland,  that  it  is  now  com- 
mon, and  not  inappropriate,  to  speak  of  the  Irish 
exodus;  and  it  has  been  calculated,  upon  authentic 
data,  both  in  Germany  and  the  United  States,  that  for 
the  last  few  years  the  German  emigrants  have  carried 
not  far  from  fifteen  millions  of  Prussian  dollars  annu- 
ally into  the  United  States."*  The  amount  of  emi- 
grating capital  will  be  much  greater,  if  the  German 
emigration  should  be  so  much  larger  than  that  oi'  pre- 


*  On  the  other  hand,  an  immense  amount  of  capital  is  animully 
roturncd,  from  successful  cniignmts  in  the  United  States,  to  Ireland 
and  Germany.  Persons  who  have  nut  ])aid  attention  to  the  suhject, 
cannot  have  any  conception  how  many  hard  yet  {;;ladly  earned  pounds 
and  thalers  are  sent  from  our  country  to  aged  parents  or  toiling 
sisters  and  brothers  in  Europe.  A  wide-spread  and  blessed  process 
of  affection  is  thus  all  the  time  going  on — silent,  gladdening,  and  full 
ol'  licMiit y,  like  the  secret  and  beautifying  process  of  spring. 


116  ox  CTVIL  LTr.EHTY 

vious  years,  as  is  iiKlicated  l)y  many  circumstances. 
But  freemen  believe  that  governments  are  for  them, 
not  they  for  governments,  and  that  it  is  a  precious 
right  of  every  one  to  seek  that  spot  on  earth  where 
he  can  best  pursue  the  ends  of  hfe,  physical  and 
mental,  religious,  political,  and  cultural. 

If,  under  peculiar  circumstances,  a  cormtry  should 
find  itself  forced  to  prohibit  emigration,  it  would,  at 
any  rate,  so  far  as  this  right  goes,  be  an  abridgment 
of  liberty.  We  can  imagine  many  cases  in  which 
emigration  should  be  stopped  by  changing  those  cir- 
cumstances which  cause  it,  but  none  in  which  it  ought 
to  be  simply  prohibited.  The  universal  principle  of 
adhesiveness,  so  strong  in  all  spheres  of  action, 
thought  and  affection,  and  which  forms  one  of  the 
elementary  principles  of  society  and  continuity  of 
civilization,  is  sufficiently  strong  to  keep  people  where 
they  are,  if  they  possibly  can  remain ;  and  if  they 
leave  an  overpeopled  country,  or  one  in  which  they 
cannot  find  work  or  a  fair  living,  they  become  active 
producers,  and  consequently  proportionate  consumers 
in  the  new  country,  so  that  the  old  country  will  reap 
its  proportionate  benefit,  provided  free  exchange  be 
allowed  by  the  latter. 

The  same  applies  to  the  capital  removed  along 
with  emigration.  It  becomes  more  productive,  and 
mankind  at  large  are  benefited  by  it. 

Besides,  it  is  but  a  part  of  the  general  question, 
shall  or  shall  not  governments  prohibit  the  efflux  of 
money  ?  It  was  formerly  considered  one  of  the  high- 
est problems  of  statesmanship,  even  by  rulers  so 
wise  as  Frederic  the  Second,  of  Prussia,  to  prevent 


AND  SELF-GOVERNMENT.  117 

money  from  flowing  out  of  the  country;  for  Avealtli 
■\vas  believed  to  consist  in  money.  Experience  lias 
made  us  wiser.  We  know  that  the  freest  action  in 
this,  as  in  so  many  other  cases,  is  also  the  most  con- 
ducive to  general  prosperity.  It  was  stated  in  the 
journals  of  the  day  that  Miss  Jenny  Lind  remitted 
live  hundred  thousand  dollars  from  the  United  States 
to  Europe.  Suppose  this  to  be  true,  would  they  have 
been  benefited  had  she  been  forced  to  leave  that  sum 
in  this  country?  Or  would  we,  upon  the  whole, 
profit  by  preventing  five  million  dollars,  which, 
according  to  the  statement  of  our  secretary  of  state, 
arc  now  annually  sent  by  our  Irish  immigrants  to 
Ireland,  from  leaving  our  shores?  Unquestionably 
not.  But  this  is  not  the  place  for  farther  pursuing 
a  question  of  political  economy. 

The  English  provided  for  a  free  egress  and  regress 
as  early  as  in  Magna  Charta.*  As  to  the  freest  pos- 
sible locomotion  within  the  country,  I  am  aware 
that  many  persons  accustomed  to  Anglican  liberty 
may  consider  my  mentioning  it  as  part  of  civil  liberty 
somewhat  over-minute.  If  they  will  direct  their 
attention  to  countries  in  which  this  liberty  is  not 
enjoyed  in  its  fullest  extent,  they  will  agree  that  I 
have  good  reason  for  enumerating  it.  Passports  are 
odious  things  to  Americans  and  Englishmen,  and 
may  they  always  be  so.^ 


5  lion.  Edward  Everett's  dispatch  to  Mr.  Cinmiiton,  on  the  Ishiiul 
of  Cuba,  December  1,  1852. 

^  Tlie  primordial  right  of  locomotion  liiis  been  discussed  by  mo 
in  Political  Kthici«,  at  consideral>lc  length. 


118  ON  CIVIL  TJUERTY 


CIIAPTEE    X. 

LIBERTY  OF  CONSCIENCE.     PROPERTY.     SUPREMACY  OF 
THE  LAW. 

8.  Liberty  of  conscience,  or,  as  it  oiiglit  to  be 
called  more  properly,'  tlie  liberty  of  worship,  is  one 
of  the  primordial  rights  of  man,^  and  no  system  of 
liberty  can  be  considered  comprehensive  which  does 
not  include  guarantees  for  the  free  exercise  of  this 
right.  It  belongs  to  American  liberty  to  separate 
entirely  the  institution  which  has  for  its  object  the 
support  and  difltusion  of  religion  from  the  political 
government.  We  have  seen  already  what  our  con- 
stitution says  on  this  point.  All  state  constitutions 
have  similar  provisions.  They  prohibit  government 
from  founding  or  endowing  churches,  and  from  de- 
manding a  religious  qualification  for  any  ofl&ce  or  the 
exercise  of  any  right.  They  are  not  hostile  to  reli- 
gion, for  we  see  that  all  the  state  governments  direct 


'  Conscience  lies  beyond  the  reach  of  government.  "  Thoughts 
are  free,"  is  an  old  German  saw.  The  same  must  be  said  of  feel- 
ings and  conscience.  That  which  government,  even  the  most  de- 
spotic, can  alone  interfere  with,  is  the  profession  of  religion,  worship, 
and  church  government. 

2  See  Primordial  Ri";hts  in  Political  Ethics. 


AM)  .SHLF-COVEUNME.NT.  119 

or  all(jw  the  Ijiblc  to  be  read  in  the  public  schools; 
but  they  adhere  strictly  to  these  two  points :  no  wor- 
ship shall  be  interfered  with,  either  directly  by  per- 
secution, or  indirectly  by  disqualifying  members  of 
certain  sects,  or  by  favoring  one  sect  above  the 
others;  and  no  church  shall  be  declared  the  church 
of  the  state,  or  "established  church;"  nor  shall  the 
pco})le  be  taxed  by  government  to  support  the  clergy 
of  all  the  churches,  as  is  the  case  in  France. 

In  Phiglaud  there  is  an  established  church,  and 
religious  qualifications  are  required  for  certain  offices 
and  places,  at  least  in  an  indirect  way.  A  member  of 
parliament  cannot  take  his  seat  without  taking  a  cer- 
tain oath  "  upon  the  faith  of  a  Christian ;"  which,  of 
course,  excludes  Jews.  There  is  no  doubt,  however, 
that  this  disqualification  will  soon  be  removed. 
Whether  it  will  be  done  or  not,  we  are  nevertheless 
authorized  to  say  that  liberty  of  conscience  forms 
one  of  the  elements  of  Anglican  liberty.  It  has 
not  yet  arrived  at  full  maturity  in  some  portions  of 
the  Anglican  race,  but  we  can  easily  discern  it  in  the 
whole  race,  in  whose  history  we  find  religious  tolera- 
tion at  an  earlier  date  than  in  that  of  any  other  large 
]>ortion  of  mankind.  Venice,  and  some  minor  states, 
Ibund  the  economical  and  commercial  benefit  of  tole- 
ration at  an  early  period,  but  England  was  the  earliest 
country  of  any  magnitude  where  toleration,  which 
})rccedes  real  religious  liberty,  was  established.  While 
Louis  the  Fourteenth,  of  France,  called  the  Great, 
dragonaded  the  protcstants  on  no  other  ground  than 
ihat  they  would  not  become  catholics,  a  greater  king, 
William  the  Third,  declared,  in  England,  that  "con- 


120  ON  CIVIL  LIBERTY 

science  is  God's  province."  Tlie  catholics  were  long 
severely  treated  in  England,  but  it  was  more  on  a 
political  ground,  because  the  pope  supjiorted  for  a 
long  time  the  opponents  to  the  ruling  d3niasty,  than 
on  purely  religious  grounds. 

There  is  a  new  religious  zeal  manifesting  itself  in 
all  branches  of  the  christian  church.  The  catholic 
church  seems  to  be  animated  by  a  renewed  spirit  of 
activity,  not  dissimilar  to  that  wdiich  animated  it  in 
the  seventeenth  century,  by  which,  it  regained  much 
of  the  ground  lost  by  the  reformation,  and  which  has 
been  so  well  described  by  Mr.  Ranke.  The  pro- 
testants  are  not  idle ;  they  study,  probe,  preach,  and 
act  with  great  zeal.  May  Providence  grant  that  the 
Anglican  tribe,  and  all  the  members  of  the  civilized 
race,  may  more  and  more  distinctly  act  upon  the  prin- 
ciple of  religious  liberty,  and  not  swerve  from  it,  even 
under  the  most  galling  circumstances.  Calamitous 
consequences,  of  which  very  few  may  have  any  con- 
ception at  this  moment,  might  easily  follow. 

As  to  that  unhappy  and  most  remarkable  sect 
called  the  mormons,  who  have  sprung  up  and  consoli- 
dated themselves  within  our  country,  and  who  doubt- 
less may  become  troublesome  when  sufl&ciently  nume- 
rous to  call  on  us  for  admission  into  the  Union,  I  take 
it  that  the  political  trouble  they  may  give  cannot  arise 
from  religious  grounds.  Whether  they  have  fallen 
back  into  Buddhism,  making  their  god  a  perfectible 
being,  with  parts  and  local  dwelling,  cannot  become 
a  direct  political  question,  however  it  may  indirectly 
affect  society  in  all  its  parts.  The  potent  questions 
wdiich  will  offer  great  difficulty  will  be,  whether  a 


AND  SELF-GOVERNMENT.  121 

Mormon  state,  with  its  "  theo-democratic"  govern- 
ment, as  tliey  term  it,  can  be  called  a  republic,  in  the 
sense  in  which  our  constitution  guarantees  it  to  every 
member  of  the  Union,  It  will  then,  probably  for  the 
first  time  in  history,  become  necessary  legally  to 
define  what  a  republic  is.  The  other  difficulty  will 
arise  out  of  the  question  which  every  honest  man  will 
put  to  himself,  can  we  admit  as  a  state  a  society  of 
men  who  deny  the  very  first  principle,  not  of  our 
common  law,  not  of  christian  politics,  not  of  modern 
progress,  but  of  our  whole  western  civilization,  as 
contradistinguished  to  oriental  life — of  that  whole 
civilization  in  which  we  have  our  being,  and  which 
is  the  precious  joint  product  of  Christianity  and  an- 
tiquity— who  deny  monogamy. 

No  one  ^vill  now  deny  that  the  English  parliament 
followed  too  tardily  the  advice  of  those  great  states- 
men who  urged  it  long  ago  to  abolish  test  oaths,  and 
other  religious  impediments ;  but  to  judge  impartiall}'', 
we  must  not  forget  that  the  removal  of  disqualifica- 
tions in  countries  enjo3^ing  a  high  degree  of  liberty, 
is  always  more  difficult  than  in  despotic  countries, 
where  all  beneath  the  despot  live  in  one  waste 
equality.  Liberty  implies  the  enjoyment  of  important 
rights  and  high  privileges.  To  share  them  freely 
with  others  who  until  then  have  not  enjoyed  them 
appears  like  losing  part  of  them.  It  is  a  universal 
psychologic  law.  Neither  religion,  nor  color,  con- 
stitutes half  the  difl'ercnce  in  many  Asiatic  states, 
which  they  establish  in  far  freer  countries.  It  must 
likewise  be  remembered  that  liberty  implies  powei-, 
the  authority  of  acting;  consequently,  an  adiiiissjoii 
VOL.  I.— 11 


122  ON  CIVIL  LIBEKTY 

to  equality  iu  a  free  country  implies  admission  to 
power,  and  it  is  this  which  frequently  creates,  justly 
or  unjustly,  the  difficulty  of  perfect  religious  equality 
in  certain  states  of  society. 

The  end,  however,  which  is  to  be  reached,  and 
towards  which  all  liberty  and  political  civilization 
tends,  is  perfect  liberty  of  conscience. 

9.  One  of  the  staunchest  principles  of  civil  liberty 
is  the  firmest  possible  protection  of  individual  pro- 
perty^— acquired  or  acquiring,  produced  and  accu- 
mulated, or  producing  and  accumulating.  We  in- 
clude, therefore,  unrestrained  action  in  producing 
and  exchanging,  the  prohibition  of  all  unfair  mono- 
polies, commercial  freedom,  and  the  guarantee  that 
no  property  shall  be  taken  except  in  the  course  of 
law ;  and  the  principle  that,  in  particular,  the  con- 
stant taking  away  of  part  of  property,  called  taxa- 
tion, shall  not  take  place,  except  by  the  direct  or 
indirect  consent  of  the  owner — the  tax-payer — and, 
moreover,  that  the  power  of  government  to  take 
part  of  the  property,  even  with  the  consent  of  the 
payer,  be  granted  for  short  periods  only,  so  that  the 
taxes  must  be  renewed,  and  may  be  revised  at  brief 


3  It  has  been  one  of  the  main  objects  in  my  Essays  on  Labor 
and  Property,  to  show  the  necessity  and  justice  of  individual  pro- 
perty, and  its  direct  connection  with  man's  individuality,  of  which 
it  is  but  the  reflex  in  the  material  world  around  him.  INIan  suflers 
in  individuality,  therefore  in  liberty,  in  the  degree  in  which  abso- 
lutism, which  is  always  of  a  communistic  natui-e,  deprives  him  of 
the  possession,  enjoyment,  production,  and  exchange  of  individual 
property.  The  Essays  treat  of  property  in  a  political,  psychologic 
and  economical  point  of  view. 


AND  SELF-GOVERNMENT.  128 

intervals.  The  true  protection  of  individual  pro- 
perty demands  likewise  the  exclusion  of  confiscation. 
For,  although  confiscation  as  a  punishment  is  to  be 
rejected,  on  account  of  the  undefined  character  of 
the  punishment,  depending  not  upon  itself  but  upon 
the  fact  whether  the  punished  person  has  any  pro- 
perty, and  how  much,  it  is  likewise  inadmissible  on 
the  ground  that  individual  property  implies  indivi- 
dual transmission,''  which  confiscation  totally  de- 
stroys. It  would  perhaps  not  be  wholly  unjust  to 
deprive  an  individual  of  his  property  as  a  punish- 
ment for  certain  crimes,  if  we  were  to  allow  it  to 
pass  to  his  heirs.  We  do  it  in  fact  when  w^e  im- 
prison a  man  for  life,  and  submit  him  to  the  regular 
prison  discipline,  disallowing  him  any  benefit  of  the 
property  he  may  possess ;  but  it  is  unjust  to  deprive 
his  children  or  other  heirs  of  the  individual  pro- 
perty, not  to  speak  of  the  appetizing  effect  which 
confiscation  of  property  has  often  produced  upon 
governments. 

The  English  attainder  and  corruption  of  blood,  so 
far  as  it  affects  property,  is  hostile  to  this  great 
principle  of  the  utmost  protection  of  individual 
property,  and  has  come  down  to  the  present  times 
from  a  period  of  semi-communism,  when  the  king 
was  considered  the  primary  owner  of  all  land.  Cor- 
ruption of  blood  is  distinctly  abolished  by  our  con- 
stitution. 

Individual   property  is    coexistent  with   govern - 


*  The  subject  of  individual  inheritance  has  also  been  treated  at 
length  in  the  Essaj-s  mentioned  in  tlie  preceding  note. 


124  ON  CIVIL  TJBEKTY 

iiiciit.  Indeed,  if  by  government  be  understood  not 
only  the  existence  of  any  authority,  but  ratlier  the 
more  regular  and  clearly  established  governments  of 
states,  property  exists  long  before  government,  and 
is  not  its  creature ;  as  values  exist  long  before  money, 
and  money  long  before  government  coin.  We  find, 
therefore,  that  the  rightful  and  peaceful  enjoyment 
of  individual  property  is  not  mentioned  as  a  par- 
ticular item  of  civil  liberty,  as  little  as  the  institution 
of  the  family,  except  when  communistic*  ideas  have 
endangered  it,^  or,  in  particular  cases,  wlien  private 


^  I  shall  not  liave  room  to  give  a  whole  chapter  to  the  subject  of 
communism,  or,  rather,  a  single  chapter  would  be  wholly  insuffi- 
cient on  this  interesting  subject.  I  shall  mention,  therefore,  this 
only,  that  I  use  in  these  pages  the  word  communism  in  its  common 
adaptation,  meaning  a  state  of  society  in  which  individual  property 
is  abolished,  or  in  which  it  is  the  futile  endeavor  of  the  lawgiver  to 
abolish  it,  such  as  hundreds  of  attempts  in  ancient  times,  in  the 
middle  ages,  and  in  modet-n  epochs,  in  Asia  and  in  Europe  have 
been  made,  among  the  Spartans,  the  anabaptists,  and  French  com- 
munists. I  do  not  take  here  the  term  communism  in  that  philoso- 
phical sense,  according  to  which  every  state,  indeed  every  society 
whatever,  necessarily  consists  of  the  two  elements,  of  individualism 
and  socialism.  The  grave  error  of  the  socialist  is  that  he  extends 
the  principle  of  socialism,  correct  in  itself,  to  the  sphere  where 
individualism  or  separatism,  equally  correct,  ought  to  determine 
our  actions.  The  socialist  is  as  mistaken  an  enthusiast  as  the  indi- 
vidualist would  be,  who,  forgetting  the  clement  of  socialism,  should 
carry  his  principle  to  the  extreme  of  sejunctive  egotism,  and  insist 
upon  a  dissolution  of  government  and  a  disavowal  of  the  sovereignty 
of  society  in  political  matters.  It  is  instructive  to  observe  how 
•also  in  this  case  the  extremes  meet ;  for  works  have  been  actually 
published  by  socialists  which  wind  up  with  an  entire  denial  of 
government,  and  an  avowal  of  "individual  sovereignly." 

^  See  the  Constitution  of  the  French  Republic  of  1848,  in  the 
appendix.     It  contains  a   paragraph  acknovrlcdging   private  pro- 


AND  SELF-GOVEllXMENT.  125 

property  must  be  given  up  for  the  public  benefit,  and 
laws  or  constitutions  settle  that  it  shall  not  be  done 
except  for  equivalents  given  by  the  public  through 
government/ 

Our  constitution  goes  farther.  It  distinctly  enacts 
that  "  no  state  shall  pass  any  law  impairing  the  ob- 
ligation of  contracts,"  which  includes  contracts  with 
governments,  and  not  only  common  contracts,  but 
rights  conferred  for  equivalents.' 

The  right  of  self-taxation  has  been  mentioned  as 
a  guarantee  of  private  property,  for,  no  matter  what 
form  taxation  may  assume,  it  must  always  consist  in 
the  appropriation  of  private  property  for  public 
ends.  Taxation  has,  however,  another,  purely  poli- 
tical and  highly  important  meaning,  and  we  shall 


perty,  the  family,  &c.  It  was  right  to  insert  it,  under  the  cir- 
cumstances. If  the  Spartans  had  ever  reformed  their  government 
and  passeil  from  their  socialism  to  individualism,  they  would  have 
been  justified  in  proclaiming  the  sanctity  of  the  family  and  the  ac- 
knowledgment of  private  cookery,  however  ludicrous  this  might 
be  under  other  circumstances. 

"  Points  belonging  to  this  subject  and  its  primordial  character 
were  pronounced  with  clearness  in  the  late  pleadings  in  the  French 
com-ts,  when  it  was  endeavored  to  show,  unfortunately  in  vain, 
that*Louis  Napoleon  had  no  right,  even  as  a  dictator,  to  confiscate 
the  private  property  of  the  Orleans  family,  and  that  the  courta 
were  competent  to  restore  it  to  the  lawful  owners. 

*  See  judge  Story,  in  his  Commentaries  on  the  Constitution  (f 
the  United  States,  and  his  Opinion,  as  well  as  chief-justice  Mar- 
shall's in  the  celebrated  Dartmouth  College  case,  4  Wheaton  U.  518, 
and  also  Mr.  Webster's  Works  for  his  argument  in  that  case. 

The  Knglish  go  much  farther  than  ourselves,  not  indeed  in  prin- 
ciple,  but  because  they  consider  many  rights,  places  and  privi- 
leges as  vested  property  which  we  by  no  means  consider  as  such. 
11* 


12()  ON  CIVIL  LIBERTY 

consider  it  under  this  aspect  in  another  part  of  this 
work. 

Every  single  subject  here  mentioned,  monopolies,® 
freedom  of  trading,  freedom  of  home  production, 
freedom  of  exchange,  possession  of  property,  taxa- 
tion and  confiscation — each  one  has  a  long  liis- 
tory,  full  of  struggle  against  error  and  government 
interference,  running  through  many  centuries  and 
even  a  thousand  years.  On  each  a  separate  and  in- 
structive history  might  be  written.  Each  shows 
the  continued  course  of  gradually,  though  very 
slowly,  expanding  freedom.  Nor  has  this  history  of 
development  reached  its  close,  although  it  has  at- 
tained to  that  period  in  which  we  acknowledge  the 
highest  protection  of  individual  property  as  an  ele- 
ment of  our  freedom. 

That  the  so-called  repudiation — it  is  always  unfor- 
tunate and  suspicious  when  offences  that  have  long- 
received  their  proper  name,  are  stamped  with  a 
new  aiid  apparently  innocent  one ;  still  worse  it  is 
when  the  error  is  elevated  into  a  commendable  act ; 
and  Bacon  is  right  when  he  says  Pesshna  enim  res 
est  errorum  apotheosis — that  repudiation  is  a  vio- 
lation of  the  sacred  principle  we  treat  of,  no  one  now 
will  have  the  hardihood  to  deny.  Still,  it  is  true 
that  abroad  it  is  almost  universally  treated  errone- 
ously, as  well  in  regard  to  its  causes  as  to  its  extent, 
the  inferences  drawn  from  it  regarding  republican 


^  An  act  of  Parliament,  under  James  the  First  (21  James  I.  i.  3) 
prohibited  all  monopolies  granted  by  the  crown,  after  the  courts 
had  repeatedly,  even  under  Elizaboth.  dct-laved  ce'rtain  monopolies 
null  and  void. 


AND  SELF-GO VEliNMEXT.  127 

government,  and  the  supposed  novelty  of  the  case. 
We  could  give  a  long  list  of  monarchical  repudiation. 
But  we  do  not  claim  this  as  an  excuse.  It  was  a 
serious  wrong,  yet  v/e  totally  deny  the  correctness  of 
the  assumed  facts  and  inferences  drawn  from  them 
by  sir  A.  Ah  son. '° 


'"  Parngrapli  59,  chap.  i.  vol.  i.  of  History  of  Europe  from  tlic 
Fall  of  Napoleon  to  the  Accession  of  Lonis  Philippe.  Tossilily  an 
opportunity  may  ofTer  itself  some  day  to  treat  of  this  melancholy 
sntiject  at  length  and  in  all  its  details. 

1  cannot  forbear  however  to  copy  a  passage  of  sir  A.  Alison,  viz., 
"  The  principal  states  of  the  Union  have,  by  common  consent,  re- 
pmliated  their  state  debts  as  soon  as  the  storms  of  adversity  blew  ; 
and  they  have  in  some  instances  resumed  the  payment  of  their 
interest  only  when  the  sale  of  lands  they  had  wrested  from  the 
Indians  afforded  them  the  means  of  doing  so,  without  recurring  to 
the  dreaded  horrors  of  direct  taxation" — and  to  add  that  there  is  not 
one  fact  in  this  whole  passage.  The  principal  states  did  not  repu- 
diate; the  repudiation  was  not  by  common  consent;  no  land  has 
been  wrested  from  th.e  Indians  and  sold  for  the  benefit  of  the  states, 
and  direct  taxation  exists  in  most  states ;  perhaps  in  all  the  states 
to  some  extent.  Many  of  tiiose  readers  who  have  been  my  pupils 
wifl  remember  that  for  a  number  of  years  I  was  in  the  habit  of 
delivering  a  coin-se  of  lectures  on  repudiation,  in  which,  I  trust,  I 
showed  no  disposition  to  mince  matters ;  but  to  repudiate  the  re- 
presentative principle  as  sir  Archibald  does  when  treating  of  repu- 
diation ;  and  to  present  the  latter  as  a  natural  consequence  of  repub- 
licism,  transcends  the  bounds  of  reason.  What  clement  in  the  En- 
glish polity,  we  would  ask,  is  it  that  makes  Engli:,h  credit  so  firm  ?  Is 
it  the  monarchical?  This  cannot  well  be,  for  many  monarchs  have 
more  than  loosely  dealt  with  credit,  public  funds  and  even  private 
property.  I  believe,  on  the  contrary,  tiiat  the  credit  of  England 
mainly  rests  on  her  representative,  her  republicaiv  principle.  I  do 
not  mean  to  say  that  people  lend  their  money,  just  bcc;iusc  she  has 
a  parliament.  What  I  mean  is  that  the  reliance  of  the  world  on 
the  good  faith  of  England  in  money  matters,  has  been  built  up  liy 
her  parliamentary  govornnient  and  w<iul<l  not  have  been  Imilt  up 
without  it. 


12b  ON  CIVIL  LI]5EJ{TV 

10.  There  can  be  no  individual  liberty  where 
every  citizen  is  not  subject  to  the  law,  and  where  he 
is  subject  to  aught  else  than  the  law — that  is  public 
opinion  organically  passed  over  into  public  will." 
This  we  call  the  supremacy  of  the  law.'^  All  sub- 
jective arbitrariness  is  contrary  to  freedom.  The 
law  of  a  freeman  is  a  general  rule  of  action,  having 
grown  out  of  the  custom  of  the  people,  or  having 
been  laid  down  by  the  authority  empowered  by  the 
people  to  do  so,  A  law  must  be  a  rule  which  does 
not  violate  a  superior  law  or  civil  principle,  it  must 
be  made  before  the  case  to  which  it  is  applied  has 
occurred  (without  which  it  cannot  be  mens  sine 
affectu,  as  the  ancients  called  the  law),  and  it  must 
be  truly  as  well  as  plainly  published. 


"  We  shall  presently  say  more  on  the  all-important  word  Law  ; 
but  for  an  extensive  discussion  of  the  subject  I  must  refer  the 
reader  to  the  Political  Ethics. 

'2  It  will  hardly  be  necessary  to  state  that  the  term  supremacy 
of  the  law,  has  a  meaning  only  when  by  law  we  imderstand  genejal 
and  pre-existing  rules  of  action  expressing  public  will.  Whether 
the  name  of  law  be  given  to  personal  decrees  and  arbitrary  deci- 
sions, is  not  of  the  smallest  importance.  Napoleon,  at  St.  Helena, 
expressed  his  surprise  at  having  been  called  a  despot.  "I,"  said 
he,  "who  have  always  acted  bylaw!"  This  forcibly  reminds  us  of 
a  prominent  French  p.ipcr,  the  Univers,  which  lately  stated  that  it 
was  decidedly  in  favor  of  representative  government,  and  that  it 
was  only  necessary  to  know  what  is  understood  by  representative 
government.  The  Univers — so  said  the  paper  itself — understands 
by  this  term  a  legislative  corps,  which  represents  the  government. 
I  have  known,  in  an  official  capacity,  a  patient  in  a  hospital  for  the  . 
insane,  who  always  maintained  that  the  difference  between  him  and 
me  was  solely  in  the  name.  "Suppose,"  he  used  to  say,  "we 
patients  vote  that  we  are  sane  and  the  out-door  paTty  is  crazy?" 
"  Don't  you  see  ?"  he  would  add  with  a  knowing  look. 


AND  SELF-GOVERNMENT.  120 

The  citizen,  therefore,  ought  not  to  be  subject  to 
ex  post  facto  laws,''  to  a  "government  by  commis- 
sions," nor  to  extraordinary  courts^"*  of  justice,  to  a 
dispensing  power  in  the  executive  (so  much  insisted 
on  by  the  Stuarts,  and,  indeed,  by  all  rulers  who 
claim  to  rule  by  a  higher  law  than  the  law  of  the 
land),  or  to  mere  "  proclamations "  of  the  crowTi  or 
executive,  nor  to  the  dictation  of  mobs,  nor  any 
people  who  claim  to  be  the  people ;  indeed,  to  no 
dictates  of  the  people  except  in  its  political,  that 
is,  in  its  organized  and  organic  capacity. 

All  the  modern  constitutions  intended  to  transplant 
Anglican  liberty,  declare  that  the  citizen  shall  be 
subject  to  his  "  natural  courts "  only.  The  charter 
of  Louis  the  Eighteenth  prohibited  cours  prevo- 
latcs.'*  It  had  become  very  necessary  to  point  out 
in  the  charter  that  every  one  should  be  judged  by 
his  "  natural  court,"  because  the  extraordinary  courts 
had  been  a  great  grievance  in  former  times,  and 
because  Napoleon  had  introduced  le  jugement  ad- 
ministratif,  although  lettres  de  cachet  remained  abo- 
lished. An  administrative  or  executive  judgment 
simply  meant  imprisonment  or  other  punishments, 
although  the  courts  had  absolved  the  prisoner,  or 
without  the  action  of  any  court.  It  is  nothing  less 
than  plain  police  government. 

The  American  Declaration  of  Independence  has  a 


'3  Our  constitution  prohibits  them. 

"  By  extra  courts  of  justice  are  meant,  in  this  connection,  conrts 
of  an  cxtraorilinary  compohition,  not  those  tliat  are  appointed  to  sit 
at  an  unusual  time. 

'^  Sec  Uie  Frendi  cliarter  in  the  appemlix. 


l.'jO  ON  CIVIL  LIBERTY 

passage  referring  to  the  subject  of  "  natural  courts." 
It  enumerates  as  one  of  the  grounds  of  justification 
for  separating  from  England,  that  the  government 
has  "  transported  us  beyond  the  seas  to  be  tried  for 
pretended  offences." 

All  continental  governments  which  were  bent  on 
defeating  the  action  of  the  new  constitutions,  even 
while  they  existed,  resorted  to  declaring  large  cities 
and  entire  districts  in  "  a  state  of  siege,"  thus  sub- 
jecting them  to  martial  law.  All  absolute  govern- 
ments, whether  monarchical  or  democratic,  have  ever 
found  the  regular  course  of  justice  inconvenient,  and 
made  war  upon  the  organic  action  of  the  law,  which 
proves  its  necessity  as  a  guarantee  of  liberty. 

It  is  obvious  that,  whatever  wise  provisions  a 
constitution  may  contain,  nothing  is  gained  if  the 
power  of  declaring  martial  law  be  left  in  the  hands 
of  the  executive ;  for  declaring  martial  law,  or  pro- 
claiming a  place  or  district  in  a  state  of  siege,  simply 
means  the  suspension  of  the  due  course  of  law,  of 
the  right  of  habeas  corpus,  of  the  common  law,  and 
of  the  action  of  courts.  The  military  commander 
places  the  prisoners  whom  he  chooses  to  withdraw 
from  the  courts  before  courts-martial.  There  were  a 
number  of  French  departments  in  "  a  state  of  siege" 
before  the  coup-d'^tat.  After  it,  all  France  may  be 
said  to  have  been  so. 

In  England,  when  there  is  a  rebellion  or  wide- 
spread disorder,  threatening  life  and  property,  a  regu- 
lar act  of  parliament  is  passed,  suspending  the  habeas 
corpus.     The  act  states  the  necessity  or  reasons,  and 


AND  SELF-GOVEKNMEXT.  181 

the  time  of  its  duration.  This  last  point  is  of  great 
importance,'" 

We  have  seen  already  under  what  circumstances 
our  constitution  permits  the  suspension  of  the  habeas 
corpus,  and  that  this  cannot  be  done  by  the  president 
alone,  but  by  congress  only,  need  hardly  be  mentioned. 

It  has  been  necessary  to  mention  here  the  supre- 
macy of  the  law  as  a  peculiar  guarantee  of  personal 
liberty.  We  shall  return  to  the  subject,  and  consider 
it  in  its  wider  relations. 

11.  The  preceding  guarantee  of  the  supremacy  of 
the  law  leads  to  a  principle,  which,  so  far  as  I  know, 
it  has  never  been  attempted  to  transplant  from  the 
soil  inhabited  by  Anglican  pfeople,  and  which  never- 
theless has  been  in  our  system  of  liberty  the  natural 
production  of  a  thorough  government  of  law,  as  con- 
tradistinguished to  a  government  of  functionaries.  It 
is  so  natural  to  the  Anglican  tribe  that  few  think  of 
it  as  essentially  important  to  civil  liberty,  and  it  is  of 
such  vital  importance  that  none  who  have  studied  the 
acts  of  government  elsewhere  can  help  recognizing 
it  as  an  indispensable  element  of  civil  liberty. 

It  is  simply  this,  that,  on  the  one  hand,  every  offi- 
cer, however  high  or  low,  remains  personally  answer- 
able to  the  affected  person  for  the  legality  of  the  act 
he  executes,  no  matter  whether  his  lawful  superior 
has  ordered  it  or  not,  and,  even,  whether  the  executive 
officer  had  it  in  his  power  to  judge  of  the  legality  of 


'®  The  act  by  which  martial  law  was  declared  in  Ireland,  during 
the  rebellion  in  1798,  can  be  seen  in  Tytlcr's  Essay  on  Military 
Law,  appendix,  No.  6.  I  copy  this  reference  from  an  article.  Mar- 
tini Law,  in  Political  Dictionary,  London,  1810. 


lo2  ON  CIVIL  LIBERTY 

the  act  lie  is  ordered  to  do  or  not ;  and  that,  on  the 
other  hand,  every  individual  is  authorized  to  resist 
an  unlawful  act,  whether  executed  by  an  otherwise 
lawfully  appointed  officer  or  not.  The  resistance  is 
made  at  the  resister's  peril.  In  all  other  countries, 
obedience  to  the  officer  is  demanded  in  all  cases,  and 
redress  can  only  take  place  after  previous  obedience.'^ 
Occasionally,  this  principle  acts  harshly  upon  the 
officer ;  but  we  prefer  this  inconvenience  to  the  inroad 
which  its  abandonment  would  make  in  the  govern- 
ment of  law.  We  will  not  submit  to  individual  men, 
but  only  to  men  who  are,  and  when  they  are,  the 
organs  of  the  law.'^  A  coup-d'dtat,  such  as  we  have 
lately  seen  in  France,  \vould  not  be  feasible  in  a 
nation  accustomed  to  this  principle.  All  the  answer 
which  the  police  officers  gave  to  men  like  general 
Cavaignac,  who  asked  them  whether  they  were  aware 
that  they  committed  a  high  crime  in  arresting  a  repre- 
sentative of  the  people,  was,  that  they  had  orders 
from  their  superior,  and  had  nothing  to  do  with  the 
question  of  legality. 

Take  as  an  instance  of  the  opposite  to  the  French 
principle  of  that  huge  institution  called  gensd'armerie, 
the  following  simple  case  : 

A  sheriff,  provided  with  the  proper  warrant,  has 
the  right,  after  request  and  denial,  to  open  the  house- 
door,  forcibly  to  open  it,  if  a  third  party  has  taken 
refuge  in  it,  or  sent  his  goods  there.     "  Every  man's 


''  Extreme  cases,  as  a  matter  of  course,  would  be  allowed  to  form 
exceptions. 

'*  I  must  asrain  refer  to  the  Political  Ethic?,  chapter  on  Obedience 
to  the  Law. 


AND  SELF-GOVERNMENT.  133 

house  is  his  castle,"  Avill  not  protect  any  one  but  the 
bona  fide  dweller  in  it.  Nevertheless,  the  sherill" 
provided  with  his  legal  warrant,  does  it  at  his  own 
peril;  for,  if  he  break  open  the  house,  however  well 
his  suspicion  may  be  grounded,  and  neither  the  party 
nor  the  goods  sought  for  be  there,  the  sheriff  is  a 
trespasser,  and  as  such  answerable  to  the  inhabitant 
of  the  house  before  the  courts  of  the  land.  This  may 
be  inconvenient  in  single  cases.  It  may  be  that  the 
maxim  which  has  been  quoted  has  "  been  carried  as 
far  as  the  true  principles  of  political  practice  will  war- 
rant— perhaps  beyond  what  in  the  scale  of  sound 
reason  and  good  policy  they  will  warrant." '^  I  doubt 
it,  whatever  the  inconvenience  in  single  cases  may 
be.  All  law  is  inconvenient  in  some  cases ;  but  even 
if  this  oi)inion  were  founded,  how  august,  on  the 
other  hand,  appears  the  law  —  I  do  not  mean  a 
single  statute,  but  the  whole  self-evolving  system  of 
a  common  law  of  the  land — that  errs  on  the  side  of 
individual  liberty  against  the  public  power  and  the 
united  weight  of  government! 

The  reader  has  seen  from  the  passage  on  warrants, 
which  I  gave  in  a  preceding  part  of  this  work,  hoAV 
far  this  principle  is  carried  in  the  case  of  resisting 
an  officer,  even  to  the  killing  him,  if  his  warrant  be 
not  wholly  correct.  Another  proof  of  the  uniform 
acknowledgment  of  this  princii)le  and  essential 
pillar  of  civil  liberty,  is  this,  that  when  a  British 
minister  obtains  an  act  of  indeinnitv,  which  is  an  act 


"  Sir  M.  Foster,  Discourse  of  Ilomiciile,  p.  310.     I  quote  from 
Broom's  Legiil  Maxims. 
VOL.  L — 12 


184  ON  CIVIL  LIBERTY 

of  iinpnuity  for  certain  illegal  acts,  which,  neverthe- 
less, necessity  demanded,  the  act  of  indemnity  is 
never  for  him  alone,  but  it  expresses  that  the  act 
shall  also  cover  what  the  inferior  officers  have  done 
by  the  direction  of  the  minister  in  the  premises.^ 

In  conclusion,  I  would  remark  that  it  is  wholly 
indifferent  who  gives  the  order.  If  it  be  illegal,  the 
person  who  executes  it  remains  responsible  for  the 
act,  although  the  president  or  the  king  should  have 
ordered  it,  or  the  offending  person  should  be  a 
soldier  obeying  his  commander.  It  is  a  stern  law, 
but  it  is  a  sacred  principle,  and  it  has  worked  well. 


2"  For  instance,  in  the  scarcity  of  grain  in  the  year  1766,  Chatham 
prohibited  exportation  of  grain.  When  parliament  met,  he  read  a 
passage  from  Locke  to  show  that  what  he  had  done  was  not  legal 
yet  right.  Indemnity  was  passed  for  him  and  those  who  had  acted 
iinderhim.  In  1818,  ministers  asked  and  obtained  indemnity  for 
the  suspension  of  habeas  corpus,  for  themselves  and  magistrates 
under  them.  Many  other  instances  might  be  given.  See  Lieber's 
Legal  and  Political  Ilermeneutics,  note  to  page  79.  Acts  of  indem- 
nity cannot  be  passed  with  us,  because  we  have  a  constitution  of 
Avhich  the  legislature  itself  is  but  the  creature,  and  we  cannot  pass 
ex  post  facto  laws.  All  that  remains  for  us  to  do  in  cases  of  absolute 
necessity  or  transcendent  utility  is  to  pass  over  the  occurrence  in 
silence ;  or  congress  may  show  its  concurrence  by  aiding  in  the  act. 
This  was  the  case  when  Mr.  Jefferson  purchased  the  mouth  of  the 
Mississippi,  i.  c.  the  territory  of  Louisiana. 


AND  SELF-GOVERXMEXT.  185 


CHAPTER    XI. 

QUARTERING    SOLDIERS.     THE   ARMY. 

12.  GovERXMEXTS,  if  not  very  closely  hedged  in, 
have  it  in  their  power  to  worry  citizens  into  sub- 
mission by  many  indirect  methods.  One  of  these, 
frequently  resorted  to  since  the  introduction  of  stand- 
ing armies,  is  that  soldiers  are  billeted  with  the  dis- 
affected citizens.  An  insolent  soldiery,  supported  by 
the  executive,  find  a  thousand  ways  of  annoying,  in- 
sulting, and  ruining  the  family  with  whom  they  are 
quartered.  It  has  been  deemed  necessary,  therefore, 
specially  to  })r(jliibit  the  quartering  of  soldiers  with 
citizens,  as  an  im})ortant  guarantee  of  civil  liberty. 
The  English  bill  of  rights,  "  declaring  the  rights  and 
liberties  of  the  subject,"  of  1688,  enumerates  in  the 
preamble,  as  one  of  the  proofs  that  James  the  Second 
"  did  endeavor  to  subvert  and  extirpate"  ..."  the 
laws  and  liberties  of  this  kingdom,"  his  "raising  and 
keeping  a  standing  army  within  the  kingdom  in 
time  of  peace,  without  consent  of  parliament,  and 
quartering  soldiers  contrary  to  law."  It  is,  in  Eng- 
land, therefore,  a  higli  offence  to  quarter  soldiers 
without  consent  of  parliament ;  and  the  constitution 
of  the  United  States  ordains  that  "  no  soldier  shall 


13()  ON  CIVIL  LIBERTY 

ill  time  of  pence  be  quartered  in  any  Louse  witliout 
tlie  consent  of  the  owner,  nor  in  time  of  war,  but  in 
a  manner  to  be  prescribed  by  law."  The  framers  of 
the  constitution,  it  will  be  observed,  were  very  exact 
in  drawing  up  this  paragraph. 

Persons  not  versed  in  the  history  of  civil  liljcrty 
and  of  progressive  absolutism,  might  be  surprised  at 
this  singling  out  of  quartering  soldiers  in  documents 
of  such  elevated  character  and  condensed  national 
demands  as  the  Bill  of  Rights  and  the  American 
constitution  are;  but  the  "dragonades"  of  Louis' the 
Fourteenth,  in  France,  of  James  the  Second,  in  Scot- 
land, and  those  of  more  recent  and  present  date,  fur- 
nish sufficient  justification  for  this  specific  guarantee. 

13.  The  preceding  safeguard,  although  justly 
pointed  out  separately,  is  still  only  part  of  the  gene- 
ral one  that  the  forces  must  be  strictly  submitted  to 
the  law.  The  navy  cannot  be,  in  its  nature,  so 
formidable  an  instrument  in  the  hands  of  the  exe- 
cutive as  the  army.  It  cannot  be  brought  to  bear 
upon  the  people ;  it  is  not  centralized  in  its  cha- 
racter, and  it  cannot  surround  the  ruler.  There  are 
many  other  reasons  why  the  navy,  the  floating  bul- 
Avarks  of  a  nation,  has  an  inherent  affinity  with  the 
popular  element,  and  why  free  nations  only  can  have 
efficient  navies  or  merchant  fleets,  as  a  disting-uished 
statesman  of  the  United  States '  has  observed. 

It  is  far  different  with  the  land  forces.  Ever  since 
standing  armies  have  been  established,  it  has  been 
necessary,  in  various  ways,  to  prevent  tlie  army  from 


Mr.  Toinsctt. 


AND  SELF-GOVERNMENT.  187 

becoming  independent  upon  the  legislature.  There 
is  no  liberty,  for  one  who  is  bred  in  the  Anglican 
school,  where  there  is  not  a  perfect  submission  of  the 
army  to  the  legislature  of  the  people.  We  hold  it  to 
be  necessary,  therefore,  to  make  but  brief  appropria- 
tions for  the  army.  The  king  of  England  cannot  raise 
an  army,  or  any  part  of  it,  without  act  of  parliament;^ 
the  army-estimates  are  j^assed  for  one  year  only,  so 
that,  were  parliament  to  refuse  appropriations,  after 
a  twelvemonth  the  army  would  be  dissolved.  The 
mutiny -bill,  by  which  power  is  given  to  the  king  to 
hold  courts-martial  for  certain  offences  in  the  army, 
is  likewise  passed  for  a  year  only ;  so  that,  without 
repassing  it,  the  crown  would  have  no  power  even  to 
keep  up  military  discipline. 

The  constitution  of  the  United  States  makes  the 
president,  indeed,  commander-in-chief,  but  he  cannot 
enlist  a  man,  or  pay  a  dollar  for  his  support,  without 
the  previous  appropriation  by  congress,  to  which  the 
constitution  gives  "power  to  make  rules  for  the 
government  and  regulation  of  the  land  and  naval 
forces,"  and  to  which  it  denies  the  authority  of  making 
any  appropriation  for  the  support  of  the  national 
forces  for  a  longer  term  than  two  years. 

The  importance  of  this  dependence  of  the  army 


2  Tlic  guards  of  Charles  the  Second  were  dcdurcd  anti-constitu- 
tional, and  the  army  of  .James  the  Second  was  one  of  the  evidences 
by  which  he  was  presumed  to  have  abdicated ;  that  is,  in  otlier 
words,  one  of  his  breaches  of  the  fundamental  law  of  the  land.  A 
new  sanction  was  given  to  this  principle  in  the  sixth  article  of  the 
Bill  of  Rights,  which  runs  thus:  A  standing  army,  without  the 
consent  of  parliament,  is  against  law. 

12'^ 


138  ON  CIVIL  LIBERTY 

u}->on  tlic  civil  power  lias  been  felt  by  all  parties. 
While  the  people  are  bent  on  submitting  the  army 
to  the  legislature,  the  governments,  which  in  the  late 
struggles  were  anxious  to  grant  as  little  liberty  as 
possible,  always  endeavored  to  exclude  the  army 
from  the  obligation  of  taking  the  constitutional  oath. 
Constitutional  oaths,  like  other  political  oaths,  are 
indeed  no  firm  guarantee  in  times  of  civil  disturb- 
ances ;  but  where  circumstances  are  such  that  people 
must  start  in  the  career  of  freedom  with  an  enacted 
constitution,  it  is  natural  and  necessary  that  the  army 
should  take  the  oath  of  fidelity  to  the  fundamental 
law,  like  any  other  persons  employed  in  public  ser- 
vice, especially  where  the  oath  of  allegiance  to  the 
monarch  continues.  The  oath,  when  taken,  we  have 
alread}'  admitted,  does  not  furnish  any  great  securit}'; 
l;)ut  in  this,  as  in  so  many  other  cases,  the  negative 
assumes  a  very  great  and  distinct  importance, 
although  the  positive  may  be  destitute  of  any  direct 
weight.  The  refusal  of  this  oath  shows  distinctly 
that  the  executive  does  not  intend  frankly  to  enter 
on  the  path  of  civil  freedom.  This  was  the  case  in 
Prussia,  when,  lately,  there  seemed  to  be  some  hope 
of  seeing  constitutional  liberty  commenced  in  that 
country. 

The  Declaration  of  Independence  saj's :  "  He  has 
kept  among  us  in  times  of  peace  standing  armies 
without  the  consent  of  our  legislatures,"  It  is  enu- 
merated as  a  radical  grievance,  plain  and  palpable 
to  ever}'  Anglican  mind.  Immediately  after,  the 
declaration  significantly  adds :  "  He  has  affected  to 
render  thr-.  militnrv  iii.lepondent  of.  and  superior  to. 


AND  SELF-GO VERXMENT.  139 

the  civil  power."  This  "  affected"  is  striking.  The 
attempt  of  doing  it,  though  the  term  affected  indi- 
cates the  want  of  success,  is  counted  as  a  grievance 
sufficient  to  warrant  among  others  an  extinction  of 
allegiance.  Of  the  twenty-seven  grievances  enume- 
rated in  the  declaration  as  justification  for  a  revolu- 
tion, three  relate  to  the  army. 

Dr.  Samuel  Johnson,  not  biased,  as  the  reader 
well  knows,  in  favor  of  popular  liberties,  never- 
theless showed  that  he  was  bred  in  England,  when 
he  speaks  of  "the  greatest  of  political  e'S'ils — the 
necessity  of  ruling  by  immediate  force."^  There  is, 
however,  a  greater  evil  still — the  ruling  by  imme- 
diate force  when  it  is  not  necessary  or  against  the 
people. 

Standing  armies  are  not  only  dangerous  to  civil 
liberty  because  directly  depending  upon  the  exe- 
cutive. They  have  the  additional  evil  effect  that 
they  infuse  into  the  whole  nation — especially  when 
they  are  national  armies,  so  that  the  old  soldiers 
return  continually  to  the  people — a  spirit  directly 
opposite  to  that  which  ought  to  be  the  general  s})irit 
of  a  free  people  devoted  to  self-government.  A  na- 
tion of  freemen  stands  in  need  of  a  pervading  spirit 
of  obedience  to  the  laws ;  an  army  teaches  and  must 
teach  a  spirit  of  prompt  obedience  to  orders.  Habits 
of  disobedience  and  of  contempt  for  the  citizen  are 
produced,  and  a  view  of  government  is  induced 
which  is  contrary  to  liberty,  self-reliance,  self-govern- 
ment.    Command  ought  to  rule  in  an  army;  self- 


*  Cnnsidorattons  on  the  Corn  Laws,  hy  Ur.  Samiu-l  Jolinson. 


140  ON  CIVIL  LIBERTY 

development  of  law  and  self-sustaining  order  ought 
to  pervade  a  free  people.  A  German  king,  in  one 
of  his  throne  speeches,  when  a  liberal  spirit  had 
already  shown  itself  in  that  country,  said:  "The  will 
of  one  must  ultimately  rule  in  the  government,  even 
as  it  is  in  the  camp."  This  shows  exactly  what  we 
mean.  The  entire  state,  with  its  jural  and  civic 
character,  is  compared  to  a  camp. 

The  officers  of  a  large  army  are  in  the  habit  of 
contemptuously  speaking  of  the  "  babbling  lawyers," 
Les  legistes  have  always  been  spoken  of  by  the 
French  ofiicers  in  the  same  tone  as  "  those  lawyers" 
were  talked  of  by  Strafford  and  Laud.  Where  the 
people  worship  the  army  an  opinion  is  engendered 
as  if  really  courage  in  battle  were  the  highest 
phase  of  humanity ;  and  the  army,  in  turn,  more 
than  aught  else,  leads  to  the  worship  of  one  man — 
so  detrimental  to  liberty.  All  debate  is  in  common 
times  odious  to  the  soldiers.  They  habitually  ridi- 
cule parliamentary  debates  of  long  duration.  Act, 
act,  is  their  cry,  which  in  that  case  means :  Com- 
mand and  obey  are  the  two  poles  round  which 
public  life  ought  to  turn.  A  man  who  has  been  a 
soldier  himself,  and  has  seen  the  inspiring  and  rally- 
ing effect  which  a  distinctive  uniform  may  have  in 
battle — the  desire  not  to  disgrace  the  coat,  is  not 
likely  to  fall  in  with  the  sweeping  denunciations  of 
the  uniform,  now  frequently  uttered  by  the  "  peace- 
men  ;"  but  it  is  true  that  the  uniform,  if  constantly 
worn,  and  if  the  army  is  large,  as  on  the  continent  of 
Europe,  greatly  aids  in  separating  the  army  from 
the  people  and  in  increasing  that  alienating  esprit 


AND  SELF-GOVERNMENT.  141 

de  corps  which  ought  not  to  exist  where  the  pcoj)lc 
value  their  liberty. 

Standing  armies,  therefore,  wherever  necessary — 
and  they  are  necessary  at  present,  as  well  as  far  pre- 
ferable to  the  medieval  militia — ought  to  be  as  small 
as  possible,  and  completely  dependent  on  the  legis- 
lature for  their  existence.  Such  standing  armies  as 
we  see  in  the  different  countries  of  the  European 
continent  are  wholly  incompatible  with  civil  liberty, 
by  their  spirit,  number  and  cost. 

A  perfect  dependence  of  the  forces,  however,  not 
only  requires  short  appropriations,  and  limited 
authority  of  the  executive  over  them.  It  is  farther 
necessary — because  they  are  under  strict  discipline, 
and  therefore  under  a  strong  influence  of  the 
executive  —  that  these  forces,  and  especially  the 
army,  be  not  allowed  to  become  deliberative  bodies, 
and  that  they  be  not  alloAved  to  vote  as  military 
bodies.  Wherever  these  guarantees  have  been  dis- 
regarded, liberty  has  fallen.  These  are  rules  of 
importance  at  all  times,  but  especially  in  countries 
where  unfortunately  very  large  standing  armies 
exist.  In  France,  the  army  consists  of  half  a  million, 
yet  universal  suffrage  gave  it  the  right  to  vote,  and 
the  army  as  well  as  the  navy  did  vote  to  justify  the 
second  of  December,  as  well  as  to  make  Louis  N. 
Bonaparte  emperor.  This  may  be  in  harmony 
with  French  "equality;"  it  may  be  democratic,  if 
this  term  be  taken  in  the  sense  in  which  it  is  wholly 
unconnected  with  liberty ;  all  that  we — peoj^le  with 
whom  liberty  is  more  than  a  theory,  or  something 
aesthetically  longed  for,  and  who  learn  liberty  as  the 


142  ON  CIVIL  LIBERTY 

artisan  learns  his  craft,  by  handling  it — all  that  we 
know  is,  that  it  is  not  liberty ;  that  it  is  directly 
destructive  of  it. 

It  was  formerly  the  belief  tliat  standing  armies 
were  incompatible  with  liberty,  and  a  very  small  one 
was  granted  to  the  king  of  England  with  much  re- 
luctance ;  and  in  France  we  have  a  gigantic  standing 
army,  itself  incompatible  with  liberty,  for  whom  in 
addition  the  right  of  voting  is  claimed. 

The  Bill  of  Eights,  and  our  own  Declaration  of 
Independence,  show  how  large  a  place  the  army 
occupied  in  the  minds  of  the  patriotic  citizens  and 
statesmen  who  drew  up  those  historic  documents, 
the  reasons  they  had  to  mention  it  repeatedly,  and 
of  erecting  fences  against  it. 

Military  bodies  ought  not  to  be  allowed  even  the 
right  of  petitioning,  as  bodies.  History  fully  proves 
the  danger,  that  must  be  guarded  against."     English 


''  I  do  not  consider  myself  authorized  to  say  tliat  tlie  Anglicans 
consider  it  an  elementary  guarantee  of  liberty  not  to  be  subjected 
to  the  obligation  of  serving  in  the  standing  army,  but  certain  it  is 
that  as  matters  now  stand,  and  as  our  feelings  now  are,  we  should 
not  consider  it  compatible  with  individual  liberty ;  indeed,  it  would 
be  considered  as  intolerable  oppression,  if  we  were  forced  to  spend 
part  of  our  lives  in  the  standing  army.  It  would  not  be  tolerated. 
The  feeling  would  be  as  strong  as  against  the  French  system  of  con- 
scription, which  drafts  by  lot  a  certain  number  of  young  men  for 
the  army,  and  permits  those  who  have  been  drafted  to  furnish 
substitutes ;  as  against  the  Prussian  system,  which  obliges  every  one 
from  the  highest  to  the  lowest,  to  serve  a  certain  time  in  the  stand- 
ing army,  with  the  exception  only  of  a  few  "mediatized  princes." 
The  Anglicans,  therefore,  may  be  said  to  be  unequivocally  in  favor 
of  enlisted  standing  armies,  where  standhig  armies  are  necessary. 


AND  SELF-GOVERNMENT.  143 

history,  ;is  "well  as  that  of  other  nations,  furnishes  us 
with  instructive  instances. 

14.  Akin  to"  the  last-mentioned  guarantee,  is  that 
which  secures  to  every  citizen  the  right  of  possessing 
and  bearing  arms.  Our  constitution  says:  "The 
right  of  the  people  to  keep  and  bear  arms  shall  not 
be  infringed  upon ;"  and  the  Bill  of  Eights  secured 
this  right  to  every  protestant.  It  extends  now  tp 
every  English  subject. 

Wherever  attempts  at  establishing  liberty  have 
been  made  in  recent  times,  on  the  continent  of 
Europe,  a  general  military  organization  of  the 
people,  or  "  national  guards,"  has  been  deemed 
necessary,  but  we  cannot  point  them  out  as  charac- 
teristics of  Anglican  liberty. 


l-l-A  ON  CIVIL  LIBERTY 


CIIAPTPJR     XII. 
PETITION.     ASSOCIATION. 

15.  We  pass  over  to  the  great  right  of  petitioning, 
so  jealously  suppressed  wherever  absolute  power 
rules  or  desires  to  establish  itself,  so  distinctly  con- 
tended for  by  the  English  in  their  revolution,  and  so 
positively  acknowledged  by  our  constitution. 

An  American  statesman  of  great  mark  has  spoken 
lightly  of  the  right  of  petition  in  a  country  in  which 
the  citizens  are  so  fully  Represented  as  with  us;*  but 
this  is  an  error.  It  is  a  right  which  can  be  abused, 
like  any  other  right,  and  wliich  in  the  United 
States  is  so  far  abused  as  to  deprive  the  petition 
of  weight  and  importance.  It  is  nevertheless  a 
sacred  right,  which  in  difficult  times  shows  itself 
in  its  full  magnitude,  frequently  serves  as  a  safety- 
valve,   if  judiciously    treated    by    the    recipients,' 


'  It  was  stated  that  the  right  of  petition  was  of  essenti;il  value 
only  in  a  monarchy,  against  the  encroachments  of  the  crown.  But 
this  whole  view  was  unquestionably  a  confined  one,  and  caused  by 
irritation  against  a  peculiar  class  of  persevering  petitioners. 

^  There  is  no  more  striking  instance  on  record,  so  far  as  our 
knowledge  goes,  than  the  formidable  petition  of  the  chartists  in 
1848,  and  the  calm  and  respect  with  which  this  threatening  docu- 


AND  SELF-GOVERNMENT.  145 

and  may  give  to  the  representatives  or  other  bodies 
the  most  valuable  information.  It  may  right  many 
a  AVTong,  and  the  privation  of  it  -would  at  once  be 
felt  by  every  freeman  as  a  degradation.  The  right 
of  petitioning  is  indeed  a  necessary  consequence  of 
the  right  of  free  speech  and  deliberation,  a  simple, 
primitive  and  natural  right.  As  a  privilege  it  is  not 
even  denied  the  creature  in  addressing  the  deity. 
It  is  so  natural  a  right,  in  all  spheres  where  there 
are  superiors  and  inferiors,  that  its  special  acknow- 
ledgment in  charters  or  by  laws,  would  be  surprising, 
had  not  ample  experience  shown  the  necessity  of 
expressing  it. 

16.  Closely  connected  with  the  right  just  men- 
tioned is  the  right  of  citizens  peaceably  to  meet  and 
to  take  public  matters  into  consideration,  and 

17.  To  organize  themselves  into  associations, 
whether  for  political,  religious,  social,  scientific,  in- 
dustrial, commercial  or  cultural  purposes.  That 
this  right  can  become  dangerous,  and  that  laws  are 
frequently  necessary  to  protect  society  against  abuse, 
every  one  knows  perfectly  well  who  has  the  least 
knowledge  of  the  French  clubs  in  the  first  revolu- 
tion. But  it  is  with  rights,  in  our  political  relations, 
as  with  the  principles  of  our  physical  and  mental 
organization — the  more  elementary  and  indispensable 
they  are,  the  more  dangerous  they  become,  if  not 
guided  by  reason.    Attempts  to  suppress  their  action 


incnt  was  received  by  the  commons,  after  a  speech  full  of  dignity 
ami  manly  acknowledgment  of  the  people  by  lord  Morpeth,  now 
carl  of  Carlisle. 

VOL.  I. — 13 


146  ON  CIVIL  LIBERTY 

lead  to  mischief  and  inisery.  What  has  been  more 
abused  than  private  and  traditional  judgment  in  all 
the  spheres  of  thought  and  taste  ?  Yet  both  are  ne- 
cessary. What  principle  of  our  nature  has  led  and 
is  daily  leading  to  more  vice  and  crime  than  that  on 
which  the  propagation  of  our  species  and  the  forma- 
tion of  the  family  depend,^  or  that  which  indicates 
by  thirst  the  necessity  of  refreshing  the  exhausted 
body  ?  Shall  the  free  sale  of  cutlery  be  interfered 
with,  because  murders  are  committed  with  knives 
and  hatchets  ? 

The  associative  principle  is  an  element  of  progress, 
protection,  and  efficient  activity.  The  freer  a  nation, 
the  more  developed  we  find  it  in  larger  or  smaller 
spheres ;  and  the  more  despotic  a  government  is,  the 
more  actively  it  suppresses  all  associations.  The 
Roman  emperors  did  not  even  suffer  the  associations 
of  handicrafts.^  In  modern  times  no  instances  of  the 
power  which  associations  may  wield,  and  of  the  full 
extent  which  a  free  country  may  safely  allow  to  their 
operations,  seem  to  be  more  strikiag  than  those  of  the 
Anti-Corn-law  League  hi  England,  which,  by  gigantic 
exertions,  ultimately  carried  free  trade  in  corn  against 
the  strongest  and  most  privileged  body  of  lando Aimers 
that  has  probably  ever  existed,  either  in  modern  or 
ancient  times ;''  and,  in  our  own  country,  the  Colo- 


^  The  so-called  Shakers  endeavor  to  extirpate  this  principle,  and 
furnish  us  with  an  illustration. 

*  A  careful  study  of  the  whole  history  of  this  remarkable  associa- 
tion, which  in  no  state  of  the  European  continent  would  have  been 
allowed  to  rise  and  expand,  is  recommended  to  every  student  of 
civil  liberty.    It  is  instructive  as  an  instance  of  perseverance  ;  of  an 


AXD  SELF-GOVERNMENT.  147 

nization  Society,  a  private  society,  planting  a  new 
state  which  will  be  of  the  vastest  injQuence  in  the 
spreading  cause  of  civilization — a  society  which,  ac- 
cording to  the  Liberian  declaration  of  independence, 
"  has  nobly  and  in  perfect  faith  redeemed  its  pledges." 
In  every  country,  except  in  the  United  States  and  in 
England,  the  cry  would  have  been,  Imperium  in  im- 
perio,  and  both  would  have  been  speedily  put 
down. 

"We  may  also  mention  our  extensive  churches,  or 
the  Law  Eeform  Association  in  England.  There  is 
nothing  that  more  forcibly  strikes  a  person  arriving 
for  the  first  time  from  the  European  continent,  either 
in  the  United  States  or  in  England,  than  the  thou- 
sandfold evidences  of  an  all-pervading  associative 
spirit  in  all  moral  and  practical  spheres,  from  the 
almost  universal  commercial  copartnerships  and  as- 
sociations, the  "  exchanges"  of  artisans,  and  banks, 
to  those  unofficial  yet  national  associations  which 
rise  to  real  grandeur.  Strike  out  from  England 
or  America  this  feature  and  principle,  and  they 
are  no  longer  the  same  self-relying,  energetic,  in- 
domitably active  people.  The  spirit  of  self-govern- 
ment would  be  gone.  In  France,  an  opposite  spirit 
prevails.  Not  only  does  the  government  believe 
that  it  must  control  everything,  but  the  people  them- 


activity  the  most  multifarious,  and  organization  the  most  extensive  ; 
of  combined  talent  and  shrewd  adaptation  of  the  means  to  the  end  ; 
and,  which  is  always  of  equal  importance,  of  a  proper  conception 
of  the  end  according  to  the  means  at  our  disposal,  without  which  it 
is  impossible  to  do  that  which  Cicero  so  highly  praised  in  Brutus, 
when  he  said  :  Quid  vult  valde  vult. 


148  ON  CIVIL  LIBERTY 

selves  seem  hardly  ever  to  iDclieve  in  success  until 
tlie  government  has  made  the  undertaking  its  own/ 


^  I  cannot  forbear  mentioning  here  one  of  those  occurrences, 
■which,  although  apparently  trivial,  nevertheless  show  the  constant 
action  of  a  great  principle,  as  the  leaf  of  a  tree  reveals  the  opera- 
tion of  the  vastest  elements  in  nature  to  the  philosopher.  At  a 
late  meeting  of  the  royal  academy  at  London,  at  which  the  minis- 
ters were  present,  the  premier,  lord  Aberdeen,  said  that  "as  a 
fact  full  of  hope  he  remarked  that  for  several  years  the  public,  in 
the  appreciation  of  art,  had  outstripped  the  government  and  the 
parliament  itself." 

The  chief  executive  officer  considers  it  a  fact  full  of  hope  that 
the  people  have  outstripped,  in  interest  and  action,  the  government 
and  parliament.  How  different  would  a  similar  case  have  presented 
itself  in  any  of  the  continental  countries  ! 


AND  SELF-OOYERXMENT.  149 


CHAPTER    XIII. 

PUBLICITY. 

18.  We  now  approacli  those  guarantees  of  liberty 
which  relate  more  especially  to  the  government  of  a 
free  country,  and  the  character  of  its  polit3^  The 
first  of  all  wc  have  to  mention  under  this  head  is  pub- 
licity of  public  business.  This  implies  the  publicity 
of  legislatures  and  judicial  courts,  as  well  as  of  all 
minor  transactions  that  can  in  their  nature  be  trans- 
acted publicly,  and  also  the  publication  of  all 
important  documents  and  reports,  treaties,  and 
whatever  else  can  interest  the  peojde  at  lai"ge.  It 
farther  implies  the  perfect  freedom  with  which 
reporters  may  publish  the  transactions  of  public 
bodies.  Without  the  latter,  the  admission  of  the 
public  would  hardly  amount  in  our  days  to  any 
publicity  at  all.  We  do  not  assemble  in  the  market.*? 
as  the  people  of  antiquity  did.  The  millions  de- 
pending upon  ])vdjlic  information,  in  our  national 
states,  could  not  meet  in  the  market,  as  was  ])os- 
sible  in  the  ancient  city-states,  even  if  we  had  not  a 
representative  government.  The  journals  are  t»> 
modern  freemen  what  Ihe  agora  was  to  the  Athe- 
nian, llic  Inrinii  1<i  the  IJonian. 


150  ON  CIVIL  LIBERTY 

Important  as  the  printing  of  transactions,  reports, 
and  documents  is,  it  is  nevertlieless  true  that 
oral  discussions  are  a  most  important  feature  of 
Anglican  publicity  of  legislative,  judicial,  and  of 
many  of  the  common  administrative  transactions. 
Modern  centralized  absolutism  has  developed  a 
system  of  writing  and  secrecy,  and  consequent 
pedantry,  abhorrent  to  free  citizens  who  exist  and 
feed  upon  the  living  word  of  liberty.^  Bureau- 
cracy  is    founded    upon    writing,    liberty    on    the 


'  The  following  passage  is  given  here  for  a  twofold  purpose. 
Everything  in  it  applies  to  the  government  of  the  pen  on  the  con- 
tinent of  Eui'ope,  and  it  shows  how  similar  causes  have  produced 
similar  results  in  India  and  under  Englishmen,  who  at  home  are  so 
adverse  to  government- writing  and  to  bureaucracy.  In  the  Notes 
on  the  North-western  Provinces  of  India,  by  Charles  Raikes,  Ma- 
gistrate and  Collector  of  Mynpoorie,  London,  1853,  we  find  the 
following  jjassage: 

"  Action,  however,  and  energy,  are  what  we  now  lay  most  stress 
upon,  because  in  days  of  peace  and  outward  tranquillity  those  qua- 
lities are  not  always  valued  at  their  true  price,  and  their  absence  is 
not  so  palpably  mischievous  as  in  more  stirring  times.  There  is 
more  danger  now  of  men  becoming  plodding,  methodical,  mere 
office  functionaries,  than  of  their  stepping  with  too  hasty  a  zeal 
beyond  the  limits  of  the  law.  There  is  truth,  too,  in  Jacquemont's 
sneer — India  is  governed  by  stationery,  to  a  more  than  sufficient 
extent ;  and  one  of  the  commonest  errors  of  our  magistrates,  which 
they  imbibe  from  constant  and  early  Indian  associations,  is  to  mis- 
take ^criiing  for  action,  to  fancy  that  dictation  will  supply  the  place 
of  exertion.  In  no  other  country  are  so  many  written  orders  issued 
with  so  much  confidence,  received  with  such  respect,  and  broken 
with  such  complacency.  In  fact,  as  for  writing,  we  believe  the 
infection  of  the  '  cacoethes  scribendi'  must  first  have  grown  up  in 
the  East.  It  pervades  everything,  but  is  more  rampant  and  more 
out  of  place  in  a  police  office  than  anywhere  else.  It  was  not  the 
magistrates  who  originated  this  passion  for  scribbling ;  but  they 
have  never  succeeded  in  repressing  it,  nor,  whilst  the  law  reViuires 


AND  SELF-GOVERNMENT.  151 

breathing  word.  I  do  not  hesitate  to  point  out 
orahty,  especially  in  the  administration  of  justice, 
in  legislation  and  local  self  government,  as  an  im- 
portant element  of  our  civil  liberty.  I  do  not 
believe  that  a  high  degree  of  liberty  can  be  imagined 
without  widely  pervading  orality ;  but  oral  transac- 
tion alone  is  no  indication  of  liberty.  The  patri- 
archal and  tribal  governments  of  Asia,  the  chieftain 
government  of  our  Indians,  indeed  all  primitive 
governments  are  carried  on  by  oral  transaction 
without  any  civil  liberty. 

Publicus,  originally  Populicus,  meant  that  which 
relates  to  the  Populus,  to  the  state,  and  it  is  signifi- 
cant that  the  term  gradually  acquired  the  meaning 
of  public,  as  we  take  it — as  significant,  as  it  is  that  a 
great  French  philosopher,  honored  throughout  our 
whole  country,  lately  wrote  to  a  friend:  "Political 
matters  here  are  no  longer  public  matters."^ 


that  every  discontented  old  woman's  story  shall  be  taken  down  in 
writing,  is  it  to  be  expected  they  ever  will.  The  Khayeths  worship 
their  pen  and  ink  on  certain  festivals,  and  there  is  a  sort  of  'religio' 
attaching  to  written  forms  and  statements,  which  is  not  confined  to 
official  life,  but  pervades  the  whole  social  polity  of  the  writing 
tribes.  An  Indian  scribe,  whose  domestic  expenditure  may  average 
sixpence  a  day,  will  keep  an  account-book  with  as  many  columns, 
headings,  and  totals,  as  would  serve  for  the  budget  of  a  chancellor 
of  the  exchequer.  To  Tudor  Mul  and  such  worthies  we  owe,  no 
doubt,  a  great  deal  for  the  method  and  order  which  Ihcy  infused 
into  puljlic  records ;  but  we  have  also  to  thank  these  knights  of  the 
pen  for  the  plaguiest  long-figured  statements,  and  the  greatest 
number  of  such  statements,  wliicli  the  world  ever  saw."  Well  may 
tiie  continental  European,  reading  tliis,  exclaim:  C'cst  tout  coniinc 
cliez  nous! 

^  This  obsci'vation  followed  a  request  to  write  hencefortli  with 
caution,  because,  said  he,  clioses  politiqiies  no  sont  ]t1us  ii-i  t-liosos 
publiiiiies.  « 


152        ■  '  ON  CIVIL  LIBERTY 

In  free  countries  political  matters  relate  to  the 
people,  and  therefore  ought  to  be  public.  Publicity 
informs  of  public  matters;  it  teaches,  and  educates, 
and  it  binds  together.  There  is  no  patriotism  with- 
out publicity,  £yid  though  publicity  cannot  always 
prevent  mischief,  it  is  at  all  events  an  alarm  bell, 
which  calls  the  public  attention  to  the  spot  of 
danger.  In  former  times  secrecy  was  considered 
indispensable  in  public  matters ;  it  is  still  so  where 
cabinet  policy  is  pursued,  or  monarchical  absolutism 
sways ;  but  even  these  governments  have  been 
obliged  somewhat  to  yield  to  a  better  sj)irit,  and  even 
Russia  publishes  occasionally  government  reports. 

That  there  are  certain  transactions  which  the 
public  service  requires  to  be  withdrawn  for  a  time 
from  publicity,  is  evident.  AVe  need  point  only  to 
diplomatic  transactions  when  not  yet  brought  to  a 
close.  But  even  with  reference  to  these,  it  will  be 
observed  that  a  great  change  has  been  wrought  in 
modern  times,  and  comparatively  a  great  degree  of 
publicity  now  prevails  even  in  the  foreign  inter- 
course of  nations — a  change  of  which  the  United 
States  have  set  the  example.  A  state  secret  was 
formerly  a  potent  word,  while  one  of  our  first  states- 
men wrote  to  the  author,  many  years  ago  :  I  would 
not  give  a  dime  for  all  the  secrets  that  people  may 
imagine  to  be  locked  up  in  the  United  States 
archives. 

It  is  a  remarkable  fact  that  no  law  insures  the 
publicity  of  the  courts  of  justice,  either  in  England 
or   the   Ignited   States.      Our    constitution    insures 


AXD  SELF-GOVERXMEXT.  153 

neither  the  publicity  of  courts  nor  that  of  congress, 
and  in  England  the  admission  of  the  public  to  the 
commons  or  the  lords  is  merely  by  sufferance.  The 
public  may  at  any  time  be  excluded  merely  by  a 
member  observing  to  the  2:)residing  officer  that 
strangers  are  present,  while  we  all  know  that  the 
candid  publication  of  the  debates  was  not  permitted 
in  the  times  of  Dr.  Johnson.  Yet  so  thoroughly  is 
publicity  now  ingrained  in  the  American  and  Eng- 
lishman that  a  suppression  of  this  precious  principle 
cannot  even  be  conceived  of.  If  any  serious  at- 
tempt could  be  made  to  carry  out  the  existing  law 
in  England,  and  the  public  were  really  excluded 
from  the  house  of  commons,  a  revolution  would  be 
unquestionably  the  consequence,  and  publicity  would 
be  added  to  the  declaration  of  rights.  We  can  no 
more  imagine  England  or  the  United  States  mthout 
the  reporting  newspapers,  than  nature  without  the 
principle  of  vegetation. 

The  principle  of  publicity  so  pervaded  all  the 
American  politics,  that  the  framers  of  our  constitu- 
tion probably  never  thought  of  it,  or  if  they  did, 
they  did  not  think  it  worth  while  to  provide  for  it 
in  the  constitution,  since  no  one  had  doubted  it.  It 
is  part  and  parcel  of  our  common  law  of  political 
existence.  They  did  not  trouble  themselves  ^vith 
unnecessaries,  or  things  which  would  have  had  a 
value  only  as  possibly  completing  a  certain  sym- 
metry of  theory. 

It  is,  however,  interesting  to  note  that  the  first 
distinctly  authorized  publicity  of  a  legislative  body 


154  ON  CIVIL  LIBERTY 

in  modern  times,  was  that  of  the  Massachusetts 
house  of  representatives,  which  adopted  it  in  1766.^ 
Publicity  of  speaking  has  its  dangers,  and  occa- 
sionally exposes  to  grave  inconveniences,  as  all 
guarantees  do,  and  necessarily  in  a  greater  degree  as 
they  are,  of  a  more  elementary  character.  It  is  the 
price  at  which  we  enjoy  all  excellence  in  this  world. 
The  science  of  politics  and  political  ethics  must  point 
out  the  dangers  as  well  as  the  formal  and  moral 
checks  which  may  avert  or  mitigate  the  evils  arising 
from  publicity  in  general,  and  public  oral  transaction 
of  business  in  particular.  It  is  not  our  business  here. 
We  treat  of  it  in  this  place  as  a  guarantee  of  liberty, 
and  have  to  show  its  indispensableness.  Those  who 
know  liberty  as  a  practical  and  traditional  reality 
and  as  a  true  business  of  life,  as  we  do,  know  that 
the  question  is  not  whether  it  be  better  to  have 
publicity  or  not,  but,  being  obliged  to  have  it,  how 
we  can  best  manaare  to  avoid  its  dans-ers  while  we 


3  I  follow  the  opinion  of  Mr.  Robert  C.  Wintbrop,  late  speaker 
of  the  American  house  of  representatives,  and  believe  him  to  be 
correct,  when,  in  an  able  Address  before  the  Maine  Historical  So- 
ciety (Boston,  1849), he  says:  "The  earliest  instance  of  authorized 
publicity  being  given  to  the  deliberations  of  a  legislative  body  in 
modern  days,  was  in  this  same  house  of  representatives  of  Massa- 
chusetts, on  the  3d  day  of  June,  1706,  when,  upon  motion  of  James 
Otis,  and  during  the  debates  which  arose  on  the  question  of  the 
repeal  of  the  stamp  act,  and  of  compensation  to  the  sufferers  by  the 
riots  in  Boston,  to  which  that  act  had  given  occasion,  a  resolution 
was  carried  '  for  ojjeuing  a  gallery  for  such  as  wished  to  hear  the 
debates.'  The  influence  of  this  measure  in  preparing  the  public 
mind  for  the  great  revolutionary  events  which  were  soon  to  follow, 
can  hardly  be  exaggerated." 


AND  SELF-GOVERNMENT.  155 

enjoy  its  fullest  benefit  and  blessing.  It  is  the  same 
as  with  the  air  we  breathe.  The  question  is  not 
whether  we  ought  to  dispense  with  a  free  respiration 
of  a]l-surrounding  air,  but  how,  with  free  inhakition, 
we  may  best  guard  ourselves  against  colds  and  other 
distempers  caused  by  the  elementary  requisite  of 
physical  life,  that  we  must  live  in  the  atmosphere.'' 


*  Great  as  the  inconvenience  is  ■wliich  arises  from  the  abuse 
of  public  speaking,  and  of  tliat  sort  of  prolixity  which  in  our 
country  is  familiarly  called  by  a  term  understood  by  every  one, 
Speaking  for  Buncombe,  yet  it  must  bo  remembered  that  the  freest 
possible,  and,  therefore,  often  abused  latitude  of  speaking,  is  fre- 
quently a  safety-valve,  in  times  of  public  danger,  for  which  nothing 
else  can  be  substituted.  The  debates  in  congress,  when  lately  the 
Union  itself  was  in  danger,  lasted  for  entire  months,  and  w;ord8 
seemed  fairly  to  weary  out  the  nation  when  every  one  called  for 
action.  There  was  no  citizen  capable  of  following  closely  all  those 
lengthy  and  occasionally  empty  debates,  with  all  their  lateral  issues. 
Still,  now  that  the  whole  is  over,  it  may  well  be  asked  whether  there 
is  a  single  attentive  and  experienced  American  who  doubts  that,  had 
it  not  been  for  that  flood  of  debate,  we  must  have  been  exposed  to 
civil  disturbances,  perhaps  to  the  rending  of  the  Union. 

Nevertheless,  it  is  a  fact  that  the  more  popular  an  assembly  is, 
the  more  liable  it  is  to  suffer  from  verbose  discussions,  and  thus  to 
see  its  action  impeded.  This  is  especially  the  case  in  a  country  in 
which,  as  in  ours,  a  personal  facility  of  public  speaking  is  almost 
universal,  and  where  an  elocutional  laxity  coexists  with  a  patient 
tenacity  of  hearing,  and  a  love  of  listening  which  can  never  be 
surfeited.  It  has  its  ruinous  eflect  upon  oratory,  literature,  the 
standard  of  thought,  upon  vigorous  action,  on  public  business,  and 
gives  a  wide  field  to  dull  mediocrity.  This  anti-rythagorean  evil 
has  led  to  the  adoption  of  the  ''one  hour  rule"  in  the  house  of 
representatives  in  congress,  and  (in  1847)  in  the  supreme  court  of 
the  United  States.  The  one-hour  rule  was  first  proposed  by  Mr. 
Holmes,  of  Charleston,  in  imitation  of  the  Athenian  one  hour  clep- 
sydra— yes,  the  prince  of  orators  had   that  dropping  monitor  by 


156  ON  CIVIL  LIBERTY  , 

Liberty,  I  said,  is  coupled  with  the  public  word, 
and  however  frequently  the  public  word  may  be 
abused,  it  is  nevertheless  true  that  out  of  it  arises 
oratory — the  aesthetics  of  liberty.  What  would 
Greece  and  Kome  be  to  us  without  their  Demosthenes 


his  side ! — and  is  now  renewed  by  every  new  liouse.  The  English 
have  begun  to  feel  the  same  evil,  and  the  adoption  of  the  same  rule 
was  proposed  in  the  commons,  in  February,  1849.  But  the  debate 
concluded  adversely  to  it,  after  sir  Robert  Peel  had  adverted  to 
Burke's  glorious  eloquence.  Our  one-honr  rule,  however,  is  not 
entirely  new  in  modern  times.  In  the  year  15G2  (on  the  21st  July), 
the  council  of  Trent  adopted  the  rule  that  the  fathers  in  delivering 
their  opinions  should  be  restricted  to  half  an  hour,  which  having 
elapsed,  the  master  of  ceremonies  was  to  give  them  a  sign  to  leave 
off.  Yet,  on  the  same  day,  an  exception  was  made  in  favor  of  Sal- 
meron,  the  pope's  first  divine,  who  occupied  the  whole  sitting 
(History  of  the  Life  of  Reginald  Pole,  by  T.  Phillips,  Oxf.  17G4, 
page  397),  very  much  as,  in  February,  1849,  the  whole  American 
house  called  "go  on,"  when  governor  McDowel  had  spoken  an 
hour.     He  continued  for  several  hours. 

HaA-ing  mentioned  the  inconvenience  of  prolix  speaking,  it  may  not 
be  improper  to  add  another  passage  of  the  address  of  ^Ir.  Winthrop, 
already  mentioned.  It  will  be  recollected  that  this  gentleman  has 
been  speaker.  He  knows,  therefore,  the  inconvenience  in  its  whole 
magnitude.  "Doubtless,"  he  says,  "  when  debates  were  conducted 
with  closed  doors  there  were  no  speeches  for  Buncombe,  no  clap- 
trap for  the  galleries,  no  flourishes  for  the  ladies,  and  it  required 
no  hour  rule  perhaps  to  keep  men  within  some  bounds  of  relevancy. 
But  one  of  the  great  som-ces  of  instruction  and  information,  in 
regard  both  to  the  general  measures  of  government  and  to  the  par- 
ticular conduct  of  their  own  representatives,  was  then  shut  out  from 
the  people,  and  words  which  might  have  roused  them  to  the  vindica- 
tion of  justice  or  to  the  overthrow  of  tyranny  were  lost  in  the 
utterance.  The  perfect  publicity  of  legislative  proceedings  is  hardly 
second  to  the  freedom  of  the  press,  in  its  influence  upon  the  progress 
and  perpetuity  of  human  liberty,  though,  like  the  freedom  of  the 
press,  it  may  be  attended  with  inconveniences  and  abuses." 


AND  SELF-GOVERNMENT.  157 

and  Cicero?  And  wliat  would  their  other  writers 
have  been,  had  not  their  languages  been  coined  out 
by  the  orator?  What  would  England  be  without 
her  host  of  manly  and  masterly  speakers?  Who 
of  us  could  wish  for  a  moment  to  see  the  treasures 
of  our  own  civilization  robbed  of  the  words  contri- 
buted by  our  speakers,  from  Patrick  Henry  to  Web- 
ster ?  The  speeches  of  great  orators  are  a  fund  of 
wealth  for  a  free  people,  from  which  the  school-boy 
begins  to  draw  when  he  declaims  from  his  Reader, 
and  which  enriches,  elevates,  and  nourishes  the  souls 
of  the  old. 

Fublicit}^  is  indispensable  to  eloquence.  Who  can 
speak  in  secret  before  a  few  ?  Orators  are  in  this 
respect  like  poets — their  kin,  of  Avhom  Goethe,  "  one 
of  the  craft,"  says  that  thc}^  cannot  sing  unless  they 
are  heard. 

All  governments  hostile  to  liberty  are  hostile  to 
publicity,  and  parliamentary  eloquence  is  odious  to 
them,  because  it  is  a  great  power  which  the  execu- 
tive can  neither  create  nor  control.  Mr.  de  ^forny, 
brother  of  Napoleon  the  Third,  issued  a  circular  to 
the  prefects,  when  minister  of  the  interior,  in  1852, 
in  which  the  publicity  of  parliamentary  government 
is  called  theatricals.  It  is  remarkable  that  this  de- 
claration should  have  come  from  a  government 
which,  above  all  others,  seems,  in  a  great  measure, 
to  rely  on  military  and  other  shows. 


VOL.  I. — 14 


158  ON  CIVIL  LIBERTY 


CHAPTEE   XIV. 

SUPREMACY  OF  THE  LAW.     TAXATION.     DIVISION  OF 
POWER. 

19.  The  supremacy  of  tlie  law,  in  the  sense  in 
wLicli  it  lias  already  been  mentioned,  or  the  protec- 
tion against  the  absolutism  of  one,  of  several,  or  the 
people  (Avhich,  practically,  and  for  common  transac- 
tions, means  of  course  the  majority),  requires  other 
guarantees  or  checks  of  great  importance. 

It  is  necessary  that  the  public  funds  be  under 
close  and  efficient  popular  control,  chiefly,  therefore, 
imder  the  supervision  of  the  popular  branch  of  the 
legislature,  which  is  likewise  the  most  important 
branch  in  granting  the  supplies,  and  the  one  in 
which,  according  to  the  English  and  American  fund- 
amental laws,  all  money  bills  must  originate.  The 
English  are  so  jealous  of  this  principle,  that  the 
commons  will  not  even  allow  the  lords  to  propose 
amendments  affecting  money  grants  or  taxation. 

If  the  power  over  the  public  treasury,  and  that  of 
imposing  taxes,  be  left  to  the  executive,  there  is  an 
end  to  public  liberty.  Hampden  knew^  it  when  he 
made  the  trifling  sum  of  a  }X)und  of  unlawfully  im- 


AND  SELF-GOVERNMENT.  159 

posed  ship-money  a  great  national  issue,  and  our  De- 
claration of  Independence  enumerates,  as  one  of  the 
gravest  grievances  against  the  mother  country,  that 
England  "  has  imposed  taxes  "without  our  consent." 

One  of  the  most  serious  mistakes  of  those  who  are 
not  versed  in  liberty  is  to  imagine  that  liberty  consists 
in  withholding  the  necessary  power  from  government. 
Liberty  is  not  of  a  negative  character.  It  does  not 
consist  in  merely  denying  power  to  government.  Go- 
vernment must  have  power  to  perform  its  functions, 
and  if  no  provision  is  made  for  an  orderly  and  or- 
ganic grant  of  power,  it  will  in  cases  of  necessity  ar- 
rogate it.  A  liberty  thus  merely  hedging  in,  would 
resemble  embankments  of  our  Mississippi,  without 
an  outlet  for  freshets.  No  one  believes  that  there 
is  time  enough  to  repair  the  crevasse.  This  applies 
to  all  subjects  of  government,  and  especially  to  ap- 
propriations of  money.  Merely  denying  monc}'  to 
government,  or,  still  worse,  not  creating  a  proper 
organism  for  granting  it,  must  lead  either  to  inanity 
or  to  executive  plundering ;  but  it  is  equally  true 
that  the  strictest  possible  limitation  and  hedging  in 
by  law,  of  the  money  grants,  are  as  requisite  for  the 
cause  of  liberty  as  the  avoidance  of  the  error  I  have 
just  pointed  out.  This  subject  is  well  treated  in  our 
Federalist,*  and  the  insufficiency  of  our  ancient 
articles  of  confederation  was  one  of  the  jirominent 
causes  which  led  our  foreiuthers  to  the  adojition  of 
the  federal  constitution.     Lord  Nugent  truly  calls 


'  Federalist,  No.   XXX.   and  seijuel,  Concerning  Taxation,  and 
i)tlier  parts  of  that  .saj:!;e  l)ook. 


160  ox  CIVIL  LIBERTY 

tlie  power  of  granting  or  refusing  supplies,  vested  in 
parliament,  but  especially  in  the  house  of  commons, 
or,  as  he  says,  "  the  entire  and  independent  control 
of  parliament  over  the  supplies,"  "the  stoutest  but- 
tress of  the  English  constitution."^ 

It  is  the  Anglican  principle  to  make  but  short 
appropriations,  and  that  appropriations  be  made  for 
distinct  purposes.  We  insist  still  more  on  this  prin- 
ciple than  the  English,  and  justly  demand  that  ap- 
propriations be  made  as  distinct  and  specific  as 
possible,  and  that  no  transfer  of  appropriations  by 
the  executive  take  place ;  that  is  to  say,  that  the  exe- 
cutive be  not  authorized  to  use  a  certain  apj)ropria- 
tion,  if  not  wholly  spent,  partially  for  purposes  for 
which  another  appropriated  sum  has  proved  to  be 
insufficient.  It  is  not  only  necessary  for  vigorous 
civil  liberty  that  the  legislature,  and  chiefly  the 
popular  branch  of  it,  kee|)  the  purse-strings  of  the 
public  treasury ;  but  also  that  the  same  principle  be 
acted  upon  in  all  minor  circles  of  the  vast  public 
fabric.  The  money  of  the  people  must  be  under  the 
control  of  the  people,  and  not  at  the  disposal  of 
officials  unconnected  with  the  people. 

The  history  of  the  control  over  the  public  funds, 
in  granting,  specifjang  and  spending  them,  may  well 
be  said  to  be  a  continuous  and  accurate  index  of  the 
growth  of  English  liberty.  It  is  this  principle  which 
has  essentially  aided  in  establishing  self-government 
in  England ;  and  which  has  made  the  house  of  com- 
mons the  real  seat  of  the  national  o-overnment  as 


2  Memorials  of  John  H^imj^den,  London,  1832.  vol.  i.  ]».  212 


AND  self-govp:rnment.  1()1 

we  now  fijid  it.  Every  one  knows  that  the  "  sup- 
plies" are  the  means  by  which  the  English  effect  in 
a  regular  and  easy  way  that  which  the  Iloman 
populus  occasionally  and  not  regularly  effected 
against  the  senate  by  a  refusal  to  enlist  in  the  army, 
when  war  was  at  the  gates  of  the  city.' 

The  history  of  the  British  civil  list,  or  the  per- 
sonal revenue  granted  to  the  monarch  at  the  be- 
ginning of  his  reign,  is  also  instructive  in  regard  to 
this  subject.  In  the  middle  ages  tlie  monarch  was 
the  chief  nobleman,  and  had,  like  every  other  noble- 
man, his  domains,  from  which  he  drew  his  revenue. 
Taxes  were  considered  extraordinary  gifts.  As  the 
monarch,  however,  wanted  more  money,  either  for 
just  or  unjust  purposes,  loans  were  made,  winch 
were  never  redeemed.  Mr.  Francis  correctly  ob- 
serves, that  it  is  absurd  to  charge  William  the  Third 
with  having  created  a  public  debt,  as  Hume  and  so 
many  others  have  done.  William  the  Third,  on  the 
contrary,  was  the  first  monarch  who  treated  loans 
really  as  loans,  and  provided  either  for  their  repay- 
ment or  the  pa^nnent  of  interest."* 

As  civil  liberty  advanced,  all  revenue  of  the 
monarch,  independent  of  the  people,  was  more  and 
more   withdrawn   from    him,    and    crown    domains 


3  Cliiitham,  when  miiiistei*  of  the  crown  in  IT-'iO,  and  while  lord 
Clivc  was  making  his  great  conquests  in  the  Kast,  said  that  neitlier 
the  East  India  Company  nir  the  crown  ought  to  have  that  immense 
revenue.  If  the  latter  had  it,  it  would  endanger  all  liberty. — 
Chatham's  Correspondence,  vol.  i. 

^   Friuicis,  Chronicles  and  Characters  of  the  Stock  Exchange. 


U)  2  ON  CT  ^'  T I  i  r,  n?  i<:  rt v 

were  more  and  more  made  public  domains,  until 
Ave  see  George  the  Tliird  giving  up  all  extra-parlia- 
mentary revenue.  The  monarch  was  made  depend- 
ent on  the  civil  list  exclusively. 

20.  It  is  farther  necessary  that  the  power  of 
making  war  essentially  reside  with  the  people,  and 
not  with  the  executive.  In  England,  it  is  true,  the 
privilege  of  making  war  and  concluding  peace  is 
called  a  royal  prerogative,  but  as  no  war  can  be  car- 
ried on  without  the  nervus  rerum  gerendarum,  it  is 
the  commons  who  decide  whether  the  war  shall  be 
carried  on  or  not.  They  can  grant  or  decline  the 
authoi'ity  of  enlisting  men,  and  the  money  to  sup- 
port them  and  to  provide  for  the  war.  The  consti- 
tution of  the  United  States  decrees  that  congress 
shall  have  power  to  make  war,*  and  an  American 
declaration  of  war  must  be  passed  by  congress  like 
any  other  law.  A  declaration  of  war  by  the  United 
States  is  a  law. 

"Where  the  executive  has  not  only  the  nominal, 
but  the  real  power  of  declaring  war,  we  cannot  speak 
of  civil  liberty  or  of  self-government ;  for  that  which 
most  essentially  affects  the  people  in  all  their  rela- 


5  It  may  as  Avell  be  observed  here  that  congress  means  the 
senate  and  house  of  representatives.  The  president  is  not  included 
in  the  term.  Parliament,  on  the  other  hand,  means  commons, 
lords  and  king.  Practically  speaking,  the  difference  is  not  great ; 
for,  the  president  has  the  veto  power,  of  which  he  makes  occasional 
use,  while  the  king  of  England  has  not  made  any  use  of  it  for  about 
a  century.  The  English  administration  would  resign  before  it 
would  become  necessary  in  their  eyes  to  veto  a  bill.  But  the  king 
of  England  has  the  greatest  of  all  veto  powers — he  can  dissolve 
parliament,  which  our  executive  cannot  do. 


AND  SELF-GOA^ERNMEXT.  108 

tions,  is  in  that  case  beYond  tlieir  control.  Even 
with  the  best  contrived  safe-guards,  and  a  dee[)ly 
rooted  tradition,  it  seems  inn)ossible  to  guard  against 
occasional  high-handed  assumption  of  power  by  the 
executive  in  this  particidar.  Whatever  our  late 
Mexican  war  ultimately  became  in  its  character, 
there  is  probably  now  no  person  who  will  deny  that, 
in  its  beginning,  it  was  what  is  called  a  cabinet  Avar. 
It  was  commenced  by  the  cabinet,  which,  after  hos- 
tilities had  begun,  called  on  government  to  ratify 
its  measures. 

It  has  already  been  stated  (paragraph  13)  that 
a  perfect  dependence  of  the  forces  upon  the  civil 
jiovver  is  an  indispensable  requisite  and  element  of 
civil  liberty. 

21.  The  supremacy  of  the  law  and  that  unstinted 
protection  of  the  individual  as  well  as  of  society,  in 
which  civil  liberty  essentially  consists,  require  on 
the  one  hand  the  fullest  possible  protection  of  the 
minority,  and,  on  the  other  hand,  the  security  of  the 
majority  that  no  fjietious  minority  or  cabal  shall 
rule  over  it. 

The  protection  of  the  minority  leads  to  that  great 
institution,  as  it  has  been  boldly  but  not  inapj^ro- 
priately  called — the  opposition.  A  well  organized 
and  fully  protected  opposition,  in  and  out  of  the 
legislature — a  loyal  opposition,  by  which  is  meant  a 
party  which  opposes,  on  princi})le,  the  administra- 
tion or  the  set  of  men  who  have,  for  the  time  being, 
the  governmeiit  in  lla-ir  liamls,  but  does  so  under 
and  within  the  common  i'uudameiital  law,  is  so  ini- 
jiortant  an    clt'iiK^nt  of  civil    liberty,   whether  eon- 


164  ON  CIVIL  LIBERTY 

sidered  as  a  protecting  fence  or  as  a  creative  power, 
that  it  would  be  im})ossible  here  to  give  to  the  sub- 
ject that  space  which  its  full  treatment  would  require. 
I  have  attempted  to  do  so,  and  to  sketch  its  history, 
in  my  Political  Ethics. 

The  elaboration  of  that  which  we  call  an  opposi- 
tion, is  an  honor  which  belongs  to  the  English,  and 
seems  to  me  as  great  and  as  noble  a  contribution  to 
the  treasures  of  civil  freedom,  as  the  development  of 
the  power  of  our  supreme  courts  (of  the  United 
States  and  of  the  difierent  states)  to  declare,  upon 
trial  of  specific  cases,  a  law  passed  by  the  legislature 
unconstitutional  and  void.  They  are  two  of  the 
noblest  acquisitions  in  the  cause  of  liberty,  order 
and  civilization. 

22.  The  majority,  and  through  it  the  people  at 
large,  are  protected  by  the  principle  that  the  admi- 
nistration is  founded  upon  party  principles,  or,  as  it 
has  been  called,  by  a  government  by  party,  if  by 
party  we  mean  men  who  agree  on  certain  ''  leading 
general  principles  in  government"^  in  opposition  to 
others,  and  act  in  unison  accordingly.  If  by  party 
be  understood  a  despicable  union  of  men,  to  turn 
out  a  certain  set  of  office-holders  merely  to  obtain 
the  lucrative  places,  and,  when  they  are  obtained,  a 
union  to  keep  them,  it  becomes  an  odious  faction  of 
placemen  or  office-hunters,  the  last  of  those  citi- 
zens to  whom  the  government  ought  to  be  intrusted. 
The  ruinous  and  rapidly  degrading  efi'ect  of  such  a 

•^  Burke. 


AND  SELF-GOVERNMENT.  105 

state  of  tilings  is  directly  contrary  to  sound  liberty, 
and  serves  as  a  fearful  encouragement  to  those,  -who, 
politically  speaking,  are  tlie  most  ^vortliless.  But 
freedom  of  thought  and  action  produces  contention 
in  all  spheres,  and,  -where  great  tasks  are  to  be  per- 
formed and  where  important  interests  are  at  stake, 
those  who  agree  on  the  most  important  principles, 
Avill  unite  and  must  do  so  in  order  to  be  sufficiently 
strong  to  do  their  work.  Without  party  adminis- 
tration, and  party  action,  it  is  impossible  that  the 
majority  should  rule,  or  that  a  vigorous  opposition 
can  rise  to  a  majority  and  rule  in  turn.  Liberty  re- 
quires a  parliamentary  government,  and  no  truly 
parliamentary  government  can  be  conceived  of  with- 
out the  principle  of  party  administration.  It  became 
fully  developed  under  George  the  First,  or  we  should 
rather  say  under  sir  Robert  Walpole.  Under  the 
previous  governments  mixed  cabinets  of  whigs  and 
tories  were  common,  when  court  intrigues  and  indi- 
vidual royal  likings  and  dislikes  had  necessarily 
often  a  greater  effect  than  national  views  and  inter- 
ests, to  which  it  is  the  object  of  i)arty  administration 
to  give  the  sway.  We  have  to  deal  with  parties,  in 
this  place,  only  as  connected  with  civil  liberty. 

For  their  dangers,  their  affinity  to  faction  as  well  as 
their  existence  in  the  arts,  sciences,  religion  and  even 
in  trades — in  fact,  wherever  free  action  is  allowed ;  for 
the  public  inconvenience  and  indeed  danger  in  having 
more  than  two  parties;  the  necessity  that  political 
parties  should  be  founded  upon  broad  comprehensive 
and    political    principles,    and    for   other   important 


166  ON  CIVIL  LIBERTY 

matters  connected  with  tlic  .siil)jcct  of  parties,  I  must 
refer  to  other  places/ 

23.  A  prhiciple  and  guarantee  of  liberty,  so 
acknowledged  and  common  witli  the  Anglican  peo- 
ple tliat  few  think  of  its  magnitude,  yet  of  really 
organic  and  fundamental  importance,  is  the  division 
of  government  into  three  distinct  functions,  or  rather 
the  keeping  of  these  functions  clearly  apart. 

It  is,  as  has  been  mentioned,  one  of  the  greatest 
political  blessings  of  England,  that  from  a  very  early 
period  her  courts  of  justice  were  not  occupied  with 
"administrative  business,"  for  instance,  the  collection 
of  taxes,  and  that  her  parliament  became  the  exclu- 
sive legislature,  while  the  parliaments  of  France 
nnited  a  judicial,  legislative,  and  administrative 
character.  The  union  of  these  functions  is  abso- 
lutism, despotism  on  the  one  hand,  and  slavery  on 
the  other,  no  matter  in  wliom  they  are  united, 
whether  in  one  despot  or  in  many,  or  in  the  multi- 
tude, as  in  Athens  after  the  time  of  Cleon,  the  tanner. 
The  English  political  philosophers  have  pointed  out 
the  necessity  of  keeping  the  three  powers  separate  in 
a  "constitutional"  government,  long  ago.^  Those, 
however,   who  have  no  other  definition  of  liberty 


'  These  subjects  liave  been  considereil  at  length  ui  the  Political 
Ethics.  The  reader  will  peruse  with  advantage  the  chapter  on 
Party  in  lord  John  Russell's  Essay  on  the  History  of  the  English 
Government  and  Constitution,  2d  edit.  London,  1823. 

8  For  instance,  Locke.  IMontesquieu,  at  a  later  period,  is  gene- 
rally considered  the  political  philosopher  who  first  distinctly  con- 
ceived the  necessity  of  the  division  of  power.  The  English  practised 
it  earliest  and  established  it  most  clenrlj- ;  and  the  French  have  again 
given  it  up,  for  a  time  at  least,  ever  since  the  revolution  of  1848, 


AND  SELF-GO VERNMEXT.  167 

than  that  it  is  equality,  discard  this  division,  except 
indeed  so  far  as  the  mere  convenience  of  transacting 
business  would  require. 

We  have  seen  already  that  a  distinguished  French 
publicist,  Mr.  Girardin,  declares  himself  for  an  un- 
divided public  power.^  Unitd  du  pouvoir  is  the 
watchword  of  the  French  republicans,  and  it  is  the 
very  principle  with  which  Louis  Napoleon  check- 
mated them.  It  belongs  to  what  may  well  be  called 
Rousseauism.  Rousseau  is  distinctly  against  division 
of  power.  His  Social  Contract  became  the  political 
bible  of  the  convention-men,  and  it  has  ever  since 
kept  a  firm  hold  on  the  mind  of  a  very  large  part  of 
the  French  people,  probably  of  the  largest  portion. 
Indeed,  we  may  say  that  the  two  great  types  of 
government  now  existing  among  the  civilized  and 
striving  portion  of  mankind  are  representative  (or, 
as  the  French  choose  to  call  it,  parliamentary)  go- 
vernment, which  is  essentially  of  a  co-operative 
character — it  is  the  government  of  Anglican  liberty ; 
and  unity  of  power,  the  Gallican  tyjie.  The  French 
people  themselves  are  divided  according  to  these  two 
types.  Mr.  Guizot  may  perhaps  be  considered  as  the 
French  representative  of  the  first  type.  A  pamphlet, 
on  the  other  hand,  on  government,  and  generally 
ascribed  to  Louis  Napoleon,  published  not  long  before 
the  explosion  of  the  republic,  fur  which  it  was  evi- 


nor  has  it  ever  been  properly  carried  out  by  tbcm,  tlicir  principle 
of  ceiitrnliziition  preventing  it.  See  Pol.  Ethics,  book  ii.  c.  xxiii. 
8  Ho  liiis  repeatedly  given  his  views,  but  especially  in  an  elnborate 
and  brilliantly  written,  but,  according  to  our  opinion,  supertiriiil 
paper  on  the  (picstion,  wliy  the  republic  (of  1818)  came  to  a  full. 


1G8  ON  CIVIL  LIBERTY 

dently  intended  to  prepare  the  public  mind,  advocates 
the  unity  of  power  in  the  hist  extreme,  and  as  a  truly 
French  principle. 

We  believe  that  the  so-called  unity  of  power  is 
unvarnished  absolutism.  It  is  indifferent  who  wields 
it.  We  insist  upon  the  supremacy,  not  the  abso- 
lutism, of  the  legislature.  We  require  the  harmoni- 
ous union  of  the  co-operative  wdiole,  but  abhor  the 
unity  of  power. 

What  the  French  republicans  demand  in  the  name 
of  the  democracy,  kings  insist  upon  in  the  name  of 
divine  right.  Both  loudly  protest  against  the  "  divi- 
sion of  sovereignty,"  "which  can  only  mean  a  clear 
division  of  poAver ;  for  w^hat  in  a  philosophical  sense 
can  truly  be  called  sovereignty,  can  never  be  di- 
vided, and  its  division  need  not,  therefore,  be  guarded 
against.  Sovereignty  is  the  self-sufficient  source  of 
all  power,  from  which  all  specific  powers  are  derived. 
It  can  dwell,  therefore,  according  to  the  vieAvs  of 
freemen,  with  society,  the  nation  only ;  but  sovereignty 
is  not  absolutism.  It  is  remarkable  how  all  abso- 
lutists, monarchical  or  democratic,  agree  on  the  unity 
of  power.'" 


1°  Innumerable  official  instances  miglit  be  cited.  The  king  of 
Prussia,  -when,  in  May,  1847,  he  delivered  his  first  throne  speech 
to  the  united  committees  of  the  provincial  estates,  which  were  to 
serve  as  a  substitute  for  the  expected  estates  general,  "appealed 
in  advance  to  his  people,"  against  everything  we  are  accustomed 
to  call  constitutional.  "  My  people  does  not  want  a  participation 
of  representatives  in  ruling,  ....  nor  the  division  of  sovereignty, 
nor  the  breaking  up  of  the  plenitude  of  royal  power,"  &c.  General 
Bonaparte  wrote  to  the  Directory,  May  14,  1796:  "One  bad 
general  is  even  better  than  two  good  ones.      War  is  like  govern- 


AND  SELF-GOVERNMENT,  1G9 

Power,  according  to  its  inherent  nature,  goes  on 
increasing,  until  checked.  The  reason  is  not  that 
power  is  necessarily  of  an  evil  tendency,  but  because 
without  it,  it  would  not  be  power."  Montesquieu 
says :  "It  is  a  lasting  experience  that  every  man 
who  has  power  is  brought  to  the  abuse  of  it.  He 
goes  on  until  he  finds  its  limits."^^  And  it  is  so  with 
"every  man,"  because  it  lies  in  the  very  nature  of 
power  itself.  The  reader  is  invited  to  re-peruse  the 
Federalist  on  this  weighty  subject." 

The  unity  of  power  doubtless  dazzles,  and  thus  is 
the  more  dangerous.  The  French  ought  to  listen 
to  their  own  great  countryman.  lie  says:  "A 
despotic  government  (and  all  unity  of  power  is 
despotic)  strikes  the  eye  (saute  pour  ainsi  dire  aux 
yeux);  it  is  uniform  throughout:  as  it  requires 
nothing  but  passions  to  establish  it,  all  sorts  of 
people  are  sufficiently  good  for  it.'"* 

Our  own  Webster,  in  his  speech  on  the  presi- 
dential protest,  delivered  the  following  admirable 
passage  on  the  subject  of  which  we  treat,  and  on 
liberty  in  general — a  passage  which  I  give  entire,  in 
spite  of  its  length,  because  I  cannot  find  the  courage 


ment,  it  is  a  matter  of  tact" — words  which  Mr.  Girardin  quotes 
with  approval,  and  as  an  authority  for  his  theory  of  the  best  govern- 
ment, consisting  in  a  succession  of  perfectly  absolute  single  rulers 
to  be  appointed,  and  at  pleasure  recalled  by  universal  sulTrapc. 

"  This  1  Jiavc  endeavored  plainly  to  show  in  the  Tolilical  Ethics. 

'^  Esprit  dcs  Loix,  xi.  5. 

"  Mr.  Madison's  paper  on  The  Meaning  of  the  Maxim,  which 
requires  a  Separation  of  the  Departments  of  Power,  examined  and 
ascertained.     Federalist,  No.  XLVIl.  and  sequ. 

'■•  Esprit  dcs  Loix,  book  vc.  14. 
VOL.  L— 15 


170  ON  CIVIL  LIBERTY 

to  mutilate  it.  I  have  tried  to  select  some  sentences, 
but  it  seemed  to  me  like  attempting  to  break  off 
some  limbs  of  a  master  work  of  sculpture  which  has 
happily  come  down  to  us  entire.'* 

Mr.  Webster  said :  "  The  first  object  of  a  free  people 
is  the  preservation  of  their  liberty,  and  liberty  is  only 
to  be  preserved  by  maintaining  constitutional  re- 
straints and  just  divisions  of  political  power.  Nothing 
is  more  deceptive  or  more  dangerous  than  the  pretence 
of  a  desire  to  simplify  government.  The  simplest 
governments  are  despotisms;  the  next  simplest  limited 
monarchies ;  but  all  republics,  all  governments  of  law, 
must  impose  numerous  limitations  and  qualifications 
of  authority,  and  give  many  positive  and  many  quali- 
fied rights.  In  other  words,  they  must  be  subject  to 
rule  and  regulation.  This  is  the  very  essence  of  free 
political  institutions. 

"  The  spirit  of  liberty  is,  indeed,  a  bold  and  fearless 
spirit ;  but  it  is  also  a  sharp-sighted  spirit ;  it  is  a  can- 


's The  speech  Tvas  delivered  in  the  Senate  of  the  United  States 
on  the  7th  of  May,  1834.  If  I  might  place  myself  by  the  side  of 
these  men  I  -would  refer  the  reader  to  the  Political  Ethics,  -where  I 
stated  that  despotism  is  simple  and  coarse.  It  is  like  a  block  of 
granite,  and  may  last  in  its  unchanging  coarseness  a  long  time;  but 
liberty  is  organic  -with  all  the  delicate  vitality  of  organic  bodies, 
■with  development,  gi-o-wth  and  expansion.  Despotism  may  have 
accretion,  but  liberty  widens  by  its  own  vital  power,  and  gains  in 
intensity  as  it  expands.  The  long  duration  of  some  despotisms 
decides  nothing.  Longevity  of  states  is  indeed  a  requisite  of 
modern  civilization,  but  if  we  must  choose,  who  would  not  prefer  a 
few  hundred  years  of  Roman  liberty,  to  the  thousands  of  Chinese 
dreary  mandarinism  and  despotism  ?  Besides,  we  must  not  forget 
that  a  shoe  once  trodden  down  to  a  slipper,  will  always  serve  longer 
in  the  slip-shod  capacity  of  a  slipper  than  it  did  as  a  decent  shoe. 


AND  SELF-GOVERNMENT.  171 

tious,  sagacious,  discriminating,  far-secing  intelligence; 
it  is  jealous  of  encroachment,  jealous  of  power,  jealous 
of  man.  It  demands  checks ;  it  seeks  for  guards ;  it 
insists  on  securities ;  it  entrenches  itself  behind  strong 
defences,  and  fortifies  itself  with  all  possible  care 
against  the  assaults  of  ambition  and  passion.  It  does 
not  trust  the  amiable  weaknesses  of  human  nature, 
and  therefore  it  will  not  permit  power  to  overstep  its 
prescribed  limits,  though  benevolence,  good  intent 
and  patriotic  purpose  come  along  with  it.  Neither 
does  it  satisfy  itself  with  flashy  and  temporary  resist- 
ance to  its  legal  authority.  Far  otherwise.  It  seeks 
for  duration  and  permanence.  It  looks  before  and 
after;  and,  building  on  the  experience  of  ages  which 
are  past,  it  labors  diligently  for  the  benefit  of  ages  to 
come.  This  is  the  nature  of  constitutional  liberty ; 
and  this  is  our  liberty,  if  we  will  rightly  understand 
and  preserve  it.  Every  free  government  is  necessarily 
complicated,  because  all  such  governments  establish 
restraints,  as  well  on  the  power  of  government  itself 
as  on  that  of  individuals.  If  we  will  abolish  the  dis- 
tinction of  branches,  and  have  but  one  branch ;  if  we 
will  abolish  jury  trials,  and  leave  all  to  the  judge ;  if 
we  will  then  ordain  that  the  legislator  shall  himself 
be  that  judge;  and  if  we  place  the  executive  power 
in  the  same  hands,  we  may  readily  simplify  govern- 
ment. "We  may  easily  bring  it  to  the  simplest  of  all 
possible  forms,  a  pure  despotism.  But  a  separation 
of  departments,  so  fiir  as  practicable,  and  the  pre- 
servation of  clear  lines  of  division  between  them,  is 
the  fundamental  idea  in  the  creation  of  all  our  con- 


172  ON  CIVIL  LIBERTY 

stitutions ;  and,  doubtless,  tlic  continuance  of  regulated 
liberty  depends  on  maintaining  these  boundaries.'"* 
Unity  of  power,  if  sought  for  in  a  mde-spread 
democracy,  must  always  lead  to  monarchical  abso- 
lutism. Virtually  it  is  such ;  for  it  is  indifferent  what 
the  appearance  or  name  may  be,  the  democracy  is 
not  a  unit  in  reality ;  yet  actual  absolutism  existing, 
it  must  be  wielded  by  one  man.  All  absolutism  is 
therefore  essentially  a  one-man  government.  The 
ruler  may  not  immediately  take  the  crown ;  the  pear 
may  not  yet  be  ripe,  as  Napoleon"  said  to  Sieyes ; 
but  it  soon  ripens,  and  then  the  avowed  absolute 
ruler  has  far  more  power  than  the  king  whose  abso- 
lute power  is  traditional,  because  the  tradition  itself 
brings  along  with  it  some  limitations  by  popular 
opinion.  Of  all  absolute  monarchs,  however,  it  is  true 
that  "  it  is  the  vice  of  a  pure  (absolute)  monarchy  to 
raise  the  power  so  high  and  to  surround  it  with  so 
much  grandeur  that  the  head  is  turned  of  him  who 
possesses  it,  and  that  those  who  are  beneath  him 
scarcely  dare  to  look  at  him.  The  sovereign  be- 
lieves himself  a  god,  the  people  fall  into  idolatry. 
People  may  then  write  on  the  duties  of  kings  and 
the  rights  of  subjects;   they  may  even  constantly 


'^  Page  122,  vol.  iv.  of  the  Works  of  Daniel  Webster.  I  Lave  not 
transcribed  this  long  passage  without  the  permission  of  those  who 
have  the  right  to  give  it. 

To  my  mind  it  appears  the  most  Demosthenian  passage  of  that 
orator.  Perhaps  I  am  biased,  because  the  extract  maintains  what  I 
have  always  asserted  on  the  nature  of  liberty,  and  what  has  shown 
itself  with  such  remarkable  clearness  and  undraped  nakedness  in 
the  late  French  affairs. 

"  I  mean  Napoleon  the  Real. 


AND  SELF-GOVERNMENT.  173 

preach  upon  them,  but  the  situations  have  greater 
power  than  the  words,  and  when  the  inequality  is 
immense,  the  one  easily  forgets  his  duties,  the  others 
their  rights.'*"  Change  the  terms,  and  nearly  every 
word  applies  to  absolute  democracies  with  equal 
truth. 


'*  Guizot,  Essais  sur  I'Histoire  de  France,  p.  359. 

General  Rapp,  first  aid  of  Napoleon,  gives  a  good  picture  of  the 
false  position  of  an  absolute  monarch,  in  his  Memoirs,  Paris, 
1832,  ch.  2.  He  says  that  "whenever  Napoleon  was  angiy, 
his  confidants,  far  from  appeasing  him,  increased  his  anger  by 
their  representations.  '  Your  majesty  is  right,'  they  would  say  : 
'  such  a  person  has  merited  to  be  shot,  or  disgraced,  or  discarded. 
...  I  have  long  known  him  to  be  your  enemy.  Examples  are 
necessary;  they  are  necessarj'  for  the  maintenance  of  tranquillity.' 
When  it  was  required  to  levy  contributions  from  the  enemies'  coun- 
try and  Napoleon  would  perhaps  ask  for  twenty  thousand,  he  was 
advised  to  demand  ten  more.  If  it  was  the  question  to  levy  two 
hundred  thousand  men,  he  was  persuaded  to  ask  for  three  hun- 
dred thousand;  in  liquidating  a  debt  which  was  indisputable,  they 
would  insinuate  doubts  on  its  legitimacy,  and  would  often  cause 
him  to  reduce  to  a  half,  or  a  third,  and  sometimes  entirely  the 
amount  of  the  demand.  If  he  spoke  of  making  war,  they  would 
applaud  the  noble  resolution:  war  alone  would  enrich  France;  it 
was  necessary  to  astonish  the  world  in  a  manner  suitable  to  the 
power  of  the  great  nation.  Thus  it  was  that  in  provoking  and  en- 
couraging expectations,  and  uncertain  enterprises,  he  was  precipi- 
tated into  continual  wars.  Thus  it  is  that  thej'  succeeded  in  giving 
to  his  reign  a  character  of  violence  which  did  not  belong  to  him. 
His  disposition  and  habits  were  altogether  good-natured.  Never  a 
man  was  more  inclined  to  indulgence  and  more  awake  to  the  voice 
of  humanity.     I  could  cite  thousands  of  examples." 

Whether  Napoleon  was  good  natured  or  not  need  not  be  discussed 
here,  nor  is  it  important  to  state  tliat  he  was  not  so  weak  as  repre- 
sented by  Rapp,  but  it  is  instructive  to  see  how  a  man  like  Rapp,  an 
uncompromising  absolutist,  unawares  lays  bare  his  own  opinion  of 
the  character  of  an  absolute  monarch,  because  he  is  absolute. 

15* 


174  ox  CIVIL  LIBERTY 

Absolute  monarcbs,  indeed,  often  allow  free  words. 
The  philosopher  Kant  uttered  remarkable  political 
sentiments  under  Frederic  the  Great,  and  Montes- 
quieu published  his  Spirit  of  Laws  under  the  aus- 
pices of  Madam  de  Tincin,  the  chanoiness  mistress 
of  the  duke  of  Orleans,  regent  of  France,  and  suc- 
cessively of  many  others.  Montesquieu  was  favored 
by  these  persons,  for  very  frequently  people  have  a 
sentimental  love  for  the  theory  of  liberty.  But  nei- 
ther Kant  nor  Montesquieu  would  have  been  suffered 
to  utter  their  sentiments  had  there  been  any  fear 
whatever  that  they  might  pass  into  reality.  There 
is  an  immense  difference  between  admiring  liberty 
as  a  philosophical  speculation,  loving  her  like  an 
imaginary  beauty  by  sonnet  and  madrigal,  and  unit- 
ing with  her  in  real  wedlock  for  better  and  worse. 


AND  SELF-OOVEllXMEXT.  175 


CnAPTER    XV. 

RESPONSIBLE    MINISTERS.     COURTS    DECLARING    LAWS 
UNCONSTITUTIONAL.  REPRESENTATIVE  GOVERNMENT. 

24.  Tt  is  not  only  necessary  that  every  officer  re- 
main individually  answerable  for  his  acts,  but  it  is 
equally  important  that  no  act  be  done  for  which  some 
one  is  not  responsible.  This  applies  in  particular,  so 
far  as  liberty  is  to  be  protected,  to  that  branch  of 
government  which  directs  the  military.  It  is  im- 
portant, therefore,  that  no  decree  of  government  go 
forth  without  the  name  of  a  responsible  person ;  and 
that  tlie  officers,  or  single  acts  of  theirs,  shall  be  tried 
by  regular  action  at  law,  or  by  impeachment ;  and 
that  no  positive  order  by  the  supreme  executive,  even 
though  this  be  a  king,  as  in  England,  be  allowed  as 
a  plea  for  impunity.  A  long  time  elapsed  before  this 
principle  came  clearly  to  be  established  in  England. 
Charles  the  First  reproved  the  commons  for  profler- 
ing  their  loyalty  to  his  own  person,  while  they  op- 
posed his  ministers  and  measures  which  he  had 
personally  ordered.  England  in  this,  as  in  almost 
all  else  that  relates  to  constitutional  liberty,  had  the 
start  of  the  continent  by  two  hundred  years  and 
more.  The  same  complaints  were  heard  on  the  con- 
tinent of  Europe  when  lately  attempts  were  made  to 


176  ON  CIVIL  LIBERTY 

establish  liberty  in  monarchies;  and  more  will  be 
heard  when  the  time  of  new  attempts  shall  have 
arrived.  Eesponsible  ministers,  and  a  cabinet  de- 
pendent upon  a  parliamentary  majority,  were  the 
objects  of  peculiar  distaste  to  the  present  emperor  of 
the  French,  as  they  have  been  to  all  absolute  mo- 
narchs.  His  own  proclamations  distinctly  express  it, 
and  his  ncAVspapers  continue  to  decry  the  servile 
position  of  government  when  ministers  are  in  the 
service  of  a  house  of  representatives. 

In  unfree  countries,  the  principle  prevails  that 
complaints  against  the  act  of  an  officer,  relating  to 
his  public  duty,  must  be  laid  before  his  own  supe- 
riors. An  overcharge  of  duty  on  imported  goods 
cannot  there  be  tried  before  a  common  court,  as  is 
the  case  with  us. 

25.  As  a  general  rule,  it  may  be  said  that  the 
principle  prevails  in  Anglican  liberty,  that  the  execu- 
tive may  do  that  which  is  positively  allowed  either 
by  the  fundamental  or  other  law,  and  not  all  that 
which  is  not  prohibited.  The  royal  prerogatives  of 
the  English  crown  doubtless  made  the  evolution  of 
this  principle  difficult,  and  may  occasionally  make 
clear  action  upon  it  still  so ;  but  the  modern  develop- 
ment of  liberty  has  unquestionably  tended  more  and 
more  distinctly  to  establish  the  principle  that  for 
everything  the  executive  does  there  must  be  the  war- 
rant of  the  law.  The  principle  is  of  high  importance, 
and  it  need  hardly  to  be  added  that  it  forms  one  of 
the  prominent  elements  of  American  liberty.  Our 
presidents,  indeed,  have  done  that  for  which  many 
citizens  believed  they  had  no  warrant  in  the  law,  for 


AND  SELF-GOVERNMEXT.  177 

instance  when  general  Jackson  removed  the  public 
deposits  from  the  bank  of  the  United  States,  but  the 
doubt  consisted  in  the  question  whether  the  law  war- 
ranted the  measure  or  not.  It  was  not  claimed  that 
he  could  do  it  because  it  was  nowhere  prohibited. 
The  constitution  of  the  United  States  declares  that 
"  the  powers  not  delegated  to  the  United  States  by 
the  constitution,  nor  prohibited  by  it  to  the  states, 
are  reserved  to  the  states  respectively,  or  to  the  peo- 
ple ;"  and  the  principle  which  I  have  mentioned  may 
be  considered  as  involved  in  it;  but  in  the  different 
states,  where  the  legislature  certainly  has  the  right, 
as  a  general  rule,  to  do  all  that  seems  necessary  for 
the  common  welfare  and  is  not  specifically  prohibited, 
the  mentioned  principle  prevails  regarding  the  ex- 
ecutive.* 


'  I  have  already  mentioned  the  judgment  given  by  the  Frencli 
court,  with  reference  to  the  opening  of  letters  by  the  police,  in  order 
to  find  out  the  traces  of  offences.  I  now  give  an  extract,  and  shall 
Italicize  those  passages  which  bear  upon  the  subject  above : 

•'Considering  that  if,  by  the  terms  of  existing  legislation,  and 
particularly  by  art.  187  of  the  penal  code,  functionaries  and  agents 
of  the  government,  and  of  the  post-office  administration,  are  for- 
bidden either  to  suppress  or  to  open  letters  confided  to  the  said 
administration,  this  disposition  cannot  reach  the  prefect  of  police, 
acting  by  virtue  of  powers  conferred  upon  him  by  art.  10  of  the 
Code  of  Criminal  Instruction  : 

"Considering  that  the  law,  in  giving  to  him  the  mission  to  in- 
vestigate offences,  to  collect  evidence  in  support  of  them,  and  to 
hand  their  authors  over  to  the  tribunals  charged  with  punishing 
them,  hns  not  limited  the  means  placed  at  hia  disposition  for  attainimj 
that  end: 

"That,  in  fact,  the  right  of  perquisition  in  aid  of  judicial  instruc- 
tions is  solemnly  affirmed  by  numerous  legal  dispositions,  and  tliat 
it  is  of  common  law  in  this  matter: 


178  ON  CIVIL  LIBERTY 

26.  The  supremacy  of  tlie  law  requires  that  where 
enacted  constitutions^  form  the  fundamental  law  there 


"  That  the  seizure  in  question  was  made  in  order  to  follow  the  trace 
of  an  offence  ;  that  it  resulted  in  the  discovery  of  useful  and  important 
facts ;  that,  finally,  the  authors  of  the  said  lettei's  have  been  prose- 
cuted in  a  court  of  justice : 

"Considering,  moreover,  that  the  court  is  not  called  upon  to  in- 
quire i7ito  the  origin  of  documents  submitted  to  its  appreciatio7i ;  that  its 
mission  is  merely  to  establish  their  authenticity  or  their  sincerity ;  that, 
in  fact,  the  letters  in  question  are  not  denied  by  their  authors : 

"  For  these  reasons  the  letters  are  declared  admissible  as  evi- 
dence," &c. 

It  is  refreshing  to  read  by  the  side  of  this  remarkable  judgment 
so  simple  a  passage  as  the  following,  which  was  contained  in  an 
English  paper  at  the  same  time  that  the  French  judgment  was  given. 
It  relates  to  a  London  police  regulation  concerning  cabmen: 

"  Now,  we  have  no  wish  to  palliate  the  bad  conduct  of  a  class 
who  at  least  furnish  amusing  topics  to  contemporaries.  By  all 
means  let  the  evils  be  remedied ;  but  let  the  remedy  come  within 
the  limits  of  law.  It  will  be  an  evil  day  for  England  when  irre- 
sponsible legislation  and  police  law,  even  for  cabmen,  are  recognized 
and  applauded  by  a  certain  public  because  in  a  given  example  it 
happens  to  be  convenient  to  them.  If  the  ordinary  law  is  not  suflS- 
cient,  let  it  be  reformed ;  but  do  not  leave  the  making  of  penal  laws 
to  the  police,  and  the  execution  of  those  laws  to  the  correctional 
tribunal  of  the  same  authority." — Spectator,  April  2,  1853. 

2  They  are  generally  called  written  constitutions ;  but  it  is  evident 
that  the  essential  distinction  of  constitutions,  derived  from  their 
origin,  is  not  whether  they  are  written  or  unwi'itten,  which  is  inci- 
dental, but  whether  they  are  enacted  or  cumulative.  The  English 
constitution,  that  is  the  aggregate  of  those  laws  and  rules  which  are 
considered  of  fundamental  importance  and  essential  in  giving  to  the 
state  and  its  government  those  features  which  characterize  them, 
or  those  laws  and  institutions  which  give  to  England  her  peculiar 
political  organic  being,  consist  in  cumulated  usages  and  branches 
of  the  common  law,  in  decisions  of  fundamental  importance,  in 
self-grown  and  in  enacted  institutions,  in  compacts,  and  in  statutes 
embodying  principles  of  political  magnitude.     From  these  we  have 


AND  SELF-GOVERNMENT.  179 

be  some  authority  which  can  pronounce  whether  the 
legislature  itself  has  or  has  not  transgressed  it  in  the 
passing  of  some  law,  or  whether  a  specific  law  con- 
flicts with  the  superior  law,  the  constitution.  If  a 
separate  body  of  men  were  established  to, pronounce 
upon  the  constitutionality  of  a  law,  nothing  would  be 
gained.  It  would  be  as  much  the  creature  of  the 
constitution  as  the  legislature,  and  might  err  as  much 
as  the  latter,  Quis  custodet  custodes  ?  Tribunes  or 
ephori  ?  They  are  as  apt  to  transgress  their  powers 
as  other  mortals.  But  there  exists  a  body  of  men  in 
all  well- organized  polities,  who,  in  the  regular  course 
of  business  assigned  to  them,  must  decide  upon  clash- 
ing interests,  and  do  so  exclusively  by  the  force  of 
reason,  according  to  law,  without  the  power  of 
armies,  the  weight  of  patronage  or  imposing  pomp, 
and  who,  moreover,  do  not  decide  upon  principles  in 
the  abstract,  but  upon  practical  cases  which  involve 
them — the  middle-men  between  the  pure  philosophers 


extracted  what  has  appeared  important  or  applicable  to  our  cir- 
cumstances, we  have  added,  expanded  and  systemized,  and  then 
enacted  this  aggregate  as  a  whole,  calling  it  a  constitution — 
enacted  not  by  the  legislature,  which  is  a  creature  of  this  very  con- 
stitution, but  by  the  people.  Whether  the  constitution  is  written, 
printed,  carved  in  stone,  or  remembered  only,  as  laws  were  of 
old,  is  not  the  distinctive  feature.  It  is  the  positive  enactment 
of  the  whole  at  one  time,  and  by  distinct  authority,  which  marks 
the  difference  between  the  origin  of  our  constitutions  and  those  of 
England  or  ancient  Rome.  Although  the  term  written  constitution 
does  not  express  the  distinctive  principle,  it  was  nevertheless  natu- 
ral that  it  should  have  been  adopted,  for  it  is  analogous  to  the  term 
lex  Hcripta,  by  which  the  enacted  or  statute  law  is  distinguished 
from  the  uncnacted,  grown  and  cumulative  common  law. 


180  ON  CIVIL  LIBERTY 

and  the  pure  men  of  government.     These  are  the 
judges — courts  of  law. 

When  laws  conflict  in  actual  cases,  they  must 
decide  which  is  the  superior  law  and  which  must 
yield;  anc^  as  we  have  seen  that  according  to  our 
principles  every  officer  remains  answerable  for  what 
he  officially  does,  a  citizen,  believing  that  the  law  he 
enforces  is  incompatible  with  the  superior  law,  the 
constitution,  simply  sues  the  officer  before  the  proper 
court  as  having  unlawfully  aggrieved  him  in  the 
particular  case.  The  court,  bound  to  do  justice  to 
every  one,  is  bound  also  to  decide  this  case  as  a 
simple  case  of  conflicting  laws.  The  court  does  not 
decide  directly  upon  the  doings  of  the  legislatui'c. 
It  simply  decides,  for  the  case  in  hand,  whether  there 
actually  are  conflicting  laws,  and  if  so,  which  is  the 
higher  law  that  demands  obedience,  when  both  may 
not  be  obeyed  at  the  same  time.  As,  however,  this 
decision  becomes  the  leading  decision  for  all  future 
cases  of  the  same  import,  until  indeed  proper  and 
legitimate  authority  should  reverse  it,  the  question 
of  constitutionality  is  virtually  decided,  and  it  is 
decided  in  a  natural,  easy,  legitimate  and  safe  man- 
ner, according  to  the  principle  of  the  supremacy  of 
the  law  and  the  independence  of  justice.  It  is  one  of 
the  most  interesting  and  important  evolutions  of  the 
government  of  law,  and  one  of  the  greatest  protec- 
tions of  the  citizen.  It  may  well  be  called  a  very 
jewel  of  Anglican  liberty,  one  of  the  best  fruits  of 
our  political  civilization.^ 


'  The  ancient  justicia  of  Arragon  bad  the  power  of  declaring 


AND  SELF-GOVERNMENT.  181 

27.  Of  all  the  guarantees  of  liberty  there  is  none 
more  important,  and  none  which  in  its  ample  and 
manifold  development  is  more  peculiarly  Anglican, 
than  the  representative  government.  Every  one 
who  possesses  a  slight  acquaintance  wdth  history, 
knows  that  a  government  by  assembled  estates  was 
common  to  all  nations  arising  out  of  the  conquests 
of  the  Teutonic  race;  but  the  members  of  the  es- 
tates were  deputies  or  attorneys  sent  with  specific 
powers  of  attorney  to  remedy  specific  grievances. 
They  became  nowliere,  out  of  England  and  her  colo- 
nies, general  representatives— that  is,  representatives 
for  the  state  at  large  and  with  the  general  power  of 
legislation.  This  constitutes  one  of  the  most  essen- 
tial differences  between  the  deputative  medieval  es- 
tates, and  the  modern  representative  legislatures — a 
government  prized  by  us  as  one  of  the  highest  po- 
litical blessings,  and  sneered  at  by  the  enemies  of 
liberty  on  the  continent,  at  this  moment,  as  "  the  un- 
wieldy parliamentary  government."  I  have  endea- 
vored thoroughly  to  treat  of  this  important  differ- 
ence; of  the  flict  that  the  representative  is  not  a 
substitute  for  something  which  would  be  better  were 
it  practicable,  but  has  its  own  substantive  value ;  of 
political  instruction  and  mandates  to  the  representa- 
tives, and  of  the  datics  of  the  representative,  in  the 


laws  unlawful  or  unconstitutional,  as  wo  call  it,  against  the  kinp 
and  estates,  but  it  was  done  without  the  trial  of  a  specific  case  and 
specific  persons.  He  was  therefore  simply  in  these  cases  ahorc 
king  and  estates,  that  is,  king  himself,  an<l  it  became  necessary  in 
course  of  time  to  suppress  this  feature.  Sec  Pol.  Ethics,  vol.  li.  p. 
281. 

VOL.  I. — 16 


182  ON  CIVIL  LIBERTY 

Political  Ethics,  to  wliicli  I  must  necessarily  refer  the 
reader. 

With  reference  to  the  great  subject  of  civil  liberty, 
and  as  one  of  the  main  guarantees  of  freedom,  the 
representative  government  has  its  value  as  an  insti- 
tution by  which  public  opinion  organically  passes 
over  into  public  will,  that  is  law ;  as  one  of  the  chief 
bars  against  absolutism  of  the  executive  on  the  one, 
and  of  the  masses  on  the  other  hand ;  as  the  only 
contrivance  by  which  it  is  possible  to  induce  at  the 
same  time  an  essentially  popular  government  and 
the  supremacy  of  the  law,  or  the  union  of  liberty 
and  order;  as  an  invaluable  high  school  to  teach  the 
handling  and  the  protection,  and  to  instil  the  love,  of 
liberty;  as  the  organism  by  which  the  average  jus- 
tice, on  which  all  fair  laws  must  be  based,  can  be 
ascertained ;  as  that  sun  which  throws  the  rays  of 
publicity  on  the  whole  government  with  a  more 
penetrating  light  the  more  perfect  it  becomes ;  and 
as  one  of  the  most  efl&cacious  preventives  of  the 
growth  of  centralization  and  a  bureaucratic^  govern- 


*  The  term  bureaucracy  is  called  by  many  barbarous,  nor  has  it, 
so  far  as  I  know,  been  introduced  into  dictionaries  of  any  authority. 
Be  it  so ;  but  while  we  have  innumerable  words,  compounded  of 
elements  which  belong  to  different  languages,  a  term  for  that  dis- 
tinct idea  which  is  designated  by  the  word  Bureaucracy  has  be- 
come indispensable  in  the  progress  of  political  science,  because  the 
thing  which  must  be  named  has  distinctly  developed  itself  in  the 
progress  of  centralization  combined  with  writing.  In  spite,  there- 
fore, of  the  want  of  texical  authority,  it  is  almost  universally  used ; 
for  necessity  presses.  I  am  under  this  necessity,  and  shall  use  it 
until  a  better  and  more  acceptable  term  be  proposed.  Mandarinism 
would  not  be  preferable.  I^Iandarinism  would  express  indeed  a 
government  by  mandarins,  by  oflScials,  but  it  would  not  designate 


AND  SELF-GOVERNMENT.  183 

ment — as  that  institution  wdthout  which  no  clear  di- 
vision of  the  functions  of  government  can  exist. 

Before  we  consider  the  most  prominent  points  of 
a  representative  government,  so  far  as  it  is  a  guarantee 
of  liberty,  it  may  be  proper  to  revert  to  two  subjects 
just  mentioned. 

There  was  a  time  when,  it  seems,  it  was  universally 
believed,  and  many  persons  believe  still,  that  a  repre- 
sentative government  is  indeed  a  very  acceptable 
substitute,  yet  only  a  substitute,  for  a  state  of  things 
which  would  be  the  perfect  one,  but  which  it  is  phy- 
sically impossible  to  obtain  at  present,  namely,  the 
meeting  of  the  people  themselves,  instead  of  an  as- 
sembly of  their  representatives  only.  A  secondary 
value  only  is  thus  allowed  to  the  representative 
system.  This  is  a  grave  error.  Even  were  it  phy- 
sically and  locally  possible  to  assemble  the  entire 
American  people,  and  rule  by  the  Athenian  pebble 
or  procheironia  (their  show  of  hands),  we  must  still 
cling  to  the  representative  system  as  a  substantive 
institution.  The  market  government  belongs  to  an- 
tiquity— the  period  of  city-states — not  to  our  period 
of  national  states ;  and  national  states  have  not  only 
a  meaning  relating  to  physical  extent  of  country. 

It  has  been  observed  that  the  period  of  nationaliza- 
tion of  tribes  toward  the  close  of  the  middle  ages,  is 


one  characteristic  which  it  is  intended  to  point  out  by  the  term 
bureaucracy,  namely,  a  government  carried  on,  not  only  by  a  hie- 
rarchy of  officials,  but  also  by  scribbling  bureaus.  All  bureaucra- 
cies must  be  mandarinisms,  I  take  it;  but  every  mandarinism  need 
not  be  a  bureaucracy.  I  observe  that  the  French,  from  whom  in- 
deed the  term  has  been  received,  freely  use  it,  even  in  their  best 
writings. 


184  ON  CIVIL  LIBERTY 

one  of  tlie  most  important  in  the  progress  of  eiviliza- 
tion  and  modern  political  development,  as  a  period 
of  medieval  disintegration  and  division  would  be 
the  necessary  effect  of  denationalization,  Eome 
perished  of  a  political  bankruptcy,  because  the 
ancient  city-state  was  incompatible  with  an  extensive 
empire.  A  representative  government  could  alone 
have  saved  it;  for  its  recollections  and  forms  of 
liberty  prevented  a  full  blown  centralization,  the 
only  other  form  which  could  have  given  to  it  a  Eus- 
sian  stability.  Constautine  indeed  established  a  cen- 
tralized court  government ;  but  it  was  then  too  late. 
The  decree  had  gone  forth  that  the  vessel  should 
part  amidst  the  breakers. 

The  market  democracy  is  irreconcilable  wath 
liberty  as  we  love  it.  It  is  absolutism  which  exists 
wherever  power,  unmitigated,  undivided  and  un- 
checked, is  in  the  hands  of  any  one  or  of  any  body  of. 
men.  It  is  the  opposite  of  liberty.  The  people,  w^hich 
means  nothing  more  than  an  aggregate  of  men, 
require  fundamental  laws  of  restraint,  as  much  as 
each  component  individual  does.  Unless  we  divide 
the  power  into  two  parts — into  the  electing  power, 
which  periodically  appoints  and  recalls,  and  into  the 
power  of  elected  trustees  appointed  to  legislate  and, 
as  trustees,  are  limited  in  their  power,  absolutism  is 
unavoidable.  Absolutism  is  the  negation  of  pro- 
tection ;  protection  in  its  highest  sense  is  an  essential 
element  of  liberty.*     It  is  the  trusteeship,  that  gives 


*  To  refer  to  books  on  such  a  subject  is  very  difficult;  for  it 
almost  comprehends  the  whole  history  of  modern  liberty. 

I  have  treated  on  many  points  connected  with  the  representative 


AND  SELF-GOVERNMENT.  185 

SO  high  a  value  to  the  representative  government. 
When  the  Athenians,  trying  the  unfortunate  gene- 
rals after  the  battle  of  Argenusae,  were  reminded 
that  they  acted  in  direct  contradiction  to  the  laws, 
they  exclaimed  that  they  were  the  people ;  they  made 
the  laws,  why  should  they  not  have  the  privilege  of 
disregarding  them  ? 

Every  one  feels  his  responsibility  far  more  dis- 
tinctly as  trustee  than  otherwise.  Let  a  man  in  an 
excited  crowd  be  suddenly  singled  out,  and  made  a 
member  of  a  committee  to  reflect  and  resolve  for 
that  crowd,  and  he  will  feel  the  difl:erence  in  an 
instant.  How  easy  it  would  be  to  receive  the  most 
lavish  and  most  dangerous  money  grants  from  an 
undivided  and  absolute  multitude  I  Is  it  necessary 
to  remind  the  reader  that  liberty  has  been  lost  quite 
as  often  from  false  gratitude  toward  a  personally 
popular  man  as  from  any  other  reason  ?  Trustees, 
carefully  looking  around  them,  and  conscious  that 
they  have  to  give  an  account  of  themselves,  are  not 
so  easily  swayed  by  ravishing  gratitude.  The  trus- 
teeship in  the  representative  government  is  the  only 
means  yet  discovered  to  temper  the  rashness  of  the 
democracy  and  overcome  the  obstinacy  of  monarchs. 


system  in  the  Political  Ethics.  Tiic  reader  will  peruse  with  in- 
terest M.  Guizot's  Histoire  des  Origines  du  Gouveruenient  Kcprc- 
sentatif  en  Europe,  Paris,  1851.  It  is  interesting  to  learn  the 
views  of  a  Frenchman  of  such  celebrity  on  a  subject  of  vital  interest 
to  us.  Regarding  the  deputative  principle,  the  Histoire  de  la 
Formation  et  des  Progres  du  Tiers  Etat  by  Augustin  Thierry, 
Paris,  1853,  is  instructive.  I  am  sorry  that  I  have  not  been  able 
to  read  Mr.  George  Harris's  True  Theory  of  Representation  in  a 
State,  London,  1852. 

16* 


186  ON  CIVIL  LIBERTY 

How  necessary  for  liberty  a  national  representa- 
tive government  is — a  representative  system  com- 
prehending the  whole  state,  and  throwing  liberty 
over  it  broadcast — will  appear  at  once,  if  we  remem- 
ber that  local  self-government  exists  in  a  very  high 
degree  in  many  Asiatic  countries,  where,  however, 
there  is  no  union  of  these  many  insulated  self- 
governments  and  no  state  self-government,  and 
therefore  no  liberty.  We  shall  also  presently  see 
that  where  there  is  only  a  national  representative 
government  without  local  self-government  there  is 
no  liberty,  as  we  understand  it. 

Nor  must  we  forget  two  facts,  which  furnish  us 
with  an  important  lesson  on  this  subject.  Wherever 
estates  or  other  bodies  have  existed,  no  matter  how 
great  their  privileges  were  or  how  zealously  they 
defended  their  liberties,  civil  liberty  has  not  been 
firmly  established ;  on  the  contrary  it  has  been  lost 
in  the  course  of  time,  unless  the  estates  have  become 
united  into  some  national  or  state  representative 
system.  Where  are  the  liberties  of  Arragon,  and 
where  is  the  freedom  of  the  many  Germanic  polities  ? 
It  was  one  of  the  greatest  political  blessings  of  Eng- 
land that  favorable  circumstances  promoted  an  early 
national  fusion  of  the  estates  into  two  houses.  On 
the  other  hand,  we  find  that  those  governments  which 
can  no  longer  resist  the  demand  of  liberty  by  the 
people,  yet  are  bent  on  yielding  as  little  as  possible, 
always  have  tried  as  long  as  possible  to  grant  pro- 


8  I  take  here  the  term  National  in  the  sense  of  relating  to  an 
entire  society  spread  over  the  territory  of  an  extensive  state ;  and 
as  contradistinguished  from  what  belongs  to  a  city-state. 


AND  SELF-GOVERNMENT.  187 

vincial  estates  only.  Some  monarcLs  of  tliis  century 
have  sliown  a  real  horror  of  national  representation, 
and  would  rather  have  periled  their  crown  than 
granted  it ;  yet  some  of  these  monarchs  have  readily 
granted  an  urban  self-government  of  considerable 
extent.  Their  ministers  and  servants  have  frequently 
gone  so  far  as  to  extol  local  self-government  and  to 
proclaim  the  idea  that  liberty  consists  far  more  in 
the  "administration"  being  left  to  the  people,  than  in 
any  general  representative  government.  In  doing 
so,  they  pointed  to  countries  in  which  the  latter, 
existing  alone,  had  brought  no  real  liberty.  Asia, 
as  was  before  stated,  furnishes  us  with  innumerable 
instances  of  local  self-government,  which  are  there 
neither  a  source  nor  a  test  of  liberty.^  True  liberty 
stands  in  need  of  both,  and  of  a  bona  iide  rej^re- 
sentative  government  largely  and  minutely  carried 
out. 


'  A  cui-ious  picture  of  Asiatic  local  self-government,  without  any 
liberty,  has  lately  been  given  to  the  public,  in  lieutenant-colonel 
C.  G.  Dixon's  Sketch  of  Maiwitra,  giving  a  brief  Account  of  tbo 
Origin  and  Habits  of  the  Mairs,  &c.,  London,  185L 


188  ON  CIVIL  LIBERTY 


CHAPTER    XYI. 

REPRESENTATIVE     GOVERNMENT     CONTINUED.       BASIS 
OF  PROPERTY.     DIRECT  AND  INDIRECT  ELECTIONS. 

28.  The  prominent  points  of  a  national  representa- 
tive government,  considered  as  a  guarantee  of  liber- 
ty, consist  in  the  representative  principle,  that  is 
the  basis  of  representation  and  the  right  of  voting 
for  the  representative,  in  the  election  laws,  and  in 
the  organization  of  the  representative  legislature, 
with  its  own  protection  and  liberties. 

All  that  we  can  say  Anglican  liberty  requires  re- 
garding the  principle  of  representation  is  that  it  be 
a  broad  or  popular  one.  Universal  suffrage  cannot 
be  said  to  be  an  AngUcan  principle,  whatever  the 
American  view,  of  which  we  shall  treat  by  and  by, 
may  be.  The  principle  of  a  wide  popular  represent- 
ation, however,  or  an  extensive  right  of  voting,  has 
constantly  though  slowly  expanded  in  England,  and 
continues  to  be  expanding.^ 

The  English,  not  allowing  universal  suffrage  or 
indeed  a  representation  based  uj)on  numbers  alone, 
require  some  limit  beyond  which  the  right  of  voting 


'  For  the  historic  deyelopmeut  of  the  English  representative 
government  it  will  hardly  be  necessary  to  refer  the  reader  to  Hal- 
lam's  History  of  the  English  Constitution. 


AXD  SELF-GOVERNMENT.  189 

shall  not  go.  This  limit  is,  as  a  general  rule,  -which 
has  however  its  exceptions,  indicated  either  by  pro- 
perty or  by  a  certain  annual  expense  which  usually 
indicates  the  amount  of  income  over  which  man  may 
dispose,  namely  house-rent.  Ilence  it  is  often  said 
that  property  is  the  basis  of  representation  in  Eng- 
land, This  is  not  correct.  Property,  or  the  enjoy- 
ment of  a  certain  revenue  cither  from  acquired  pro- 
perty or  from  an  industrial  occupation,  gives  the  right 
of  voting,  but  it  is  not  the  basis  of  representation. 

When  it  is  maintained  in  modern  times  that  pro- 
perty ought  to  be  the  basis  of  representation,  or  it 
is  asserted  that  the  English  constitution  is  founded  on 
property,  an  inappropriate  term  is  used,  which  car- 
ries along  with  it  erroneous  associations,  in  almost 
all  discussions  on  this  subject.  When  we  say  that 
population  is  the  basis  of  representation,  we  mean 
indeed  that  one  representative  is  chosen  for  a  distinct 
number  of  represented  citizens,  and  that  therefore 
a  large  population  should  have  more  representatives 
than  a  small  one ;  but  when  it  is  said  that  property 
is  or  ought  to  be  the  basis  of  representation,  we 
mean  in  almost  all  cases  nothing  more  than  that  a 
certain  amount  of  property  or  revenue  is  required 
to  entitle  a  man  to  vote.  The  lioman  constitution 
ascribed  to  Servius  Tullius  was  really  founded  upon 
property,  because  the  six  classes  of  citizens  actually 
took  a  share  in  the  government  of  the  state  in  ])ro- 
portion  to  the  property  they  held.  Thus  likewso 
there  is  a  partial  representation  of  i>roperty  }>rc- 
scribed  by  the  constitution  of  South  Carolina,  for 
the  composition  of  the  state  senate,  inasmuch  as  tho 


190  ON  CIVIL  LIBERTY 

small  but  wealthy  divisions  of  the  lower  part  of  the 
state  elect  a  number  of  senators  disproportionately 
large  compared  to  the  number  of  senators  sent  from 
the  upper  districts  of  the  state,  which  are  very  popu- 
lous and  possessed  of  proportionately  less  property. 
This  was  at  least  the  case  when  the  constitution  was 
adopted. 

What  is  really  meant  when  it  is  said  that  a  con- 
stitution ought  to  be  founded  on  property,  is  this : 
that  a  minimum  amount  of  property  ought  to  be 
adopted  as  the  last  line  beyond  which  no  sufi'rage 
ought  to  be  granted,  but  not  that  a  capital  of  a  mil- 
lion or  the  possession  of  a  thousand  acres  of  land 
ought  to  be  entitled  to  a  greater  share  in  govern- 
ment than  the  possession  of  a  few  thousand  dollars. 
It  is  meant  that  we  seek  for  a  criterion  which  will 
enable  us  to  distinguish  those  who  have  a  fair  stake 
in  the  welfare  of  the  state  from  those  who  have  not. 
But  here  occurs  at  once  the  question:  Is  this  crite- 
rion in  our  age  any  longer  safe,  just,  and  natural, 
which  it  may  be  supposed  to  have  been  in  former 
ages?  Are  there  not  thousands  of  men  -wathout 
property  who  have  quite  as  great  a  stake  in  the  pub- 
lic welfare  as  those  who  may  possess  a  house  or 
enjoy  a  certain  amount  of  revenue  ?  This  criterion 
becomes  an  actual  absurdity  when  by  property, 
landed  property  only  is  understood.  It  was  indeed 
in  the  middle  ages  almost  the  exclusive  property  of 
lasting  and  extensive  value;  but  nothing  has  since 
changed  its  character  more  than  property  itself. 
This  whole  question  is  one  of  the  vastest  extent,  and 
emphatically  belongs  to  the  science  of  politics  and 


AXD  SELF-GOVERNMENT.  101 

real  statesmanship.  In  regard  to  the  subject  imme- 
diately in  band,  we  have  only  to  repeat  that  an  ex- 
tensive basis  of  representation  is  doubtless  a  charac- 
teristic element  of  Anglican  liberty. 

29.  As  important  as  the  basis  of  representation — 
indeed,  in  many  cases  more  important — is  the  ques- 
tion whether  there  shall  be  direct  elections  by  the 
people,  or  whether  there  shall  be  double  elections ; 
that  is  to  say,  elections  of  electors  by  the  constituents, 
which  electors  elect  the  representative.  It  may  be 
safely  asserted  that  the  Anglican  people  are  distinctly 
in  favor  of  simple  elections.  Elections  by  electing 
middle  men  deprive  the  representation  of  its  direct- 
ness in  responsibility  and  temper  ;  the  first  electors 
love  their  interest,  because  they  do  not  know  what 
their  action  may  end  in ;  no  distinct  candidates  can 
be  before  the  constituents,  and  be  canvassed  by 
them,  and,  inasmuch  as  the  number  of  electors  is  a 
small  one,  intrigue  is  made  easy. 

The  fact  that  a  double  or  mediate  election  foils 
in  a  great  degree  the  very  object  of  a  representative 
government,  is  so  well  known  by  the  enemies  of 
liberty,  that  despotic  governments,  unable  to  hold 
their  absolute  power  any  longer,  have  frequently 
struggled  hard  to  establish  universal  suffrage  with 
double  election.  An  intention  to  deceive,  or  a  want 
of  acquaintance  with  the  operation  of  the  principle 
must  explain  the  measure.  I  believe  that  neither 
American  nor  Englishman  would  think  the  franchise 
worth  having  were  double  elections  introduced,  and 
so  decidedly  is  the  simple  election  ingrained  in  the 
Anglican  character,  that  in  the  only  notable  case  in 


192  ON  CIVIL  LIBERTY 

•wliich  a  mediate  election  is  prescribed  in  America, 
namely  the  election  of  the  president  of  the  United 
States,  the  whole  has  naturally  and  of  itself  become 
a  direct  election.  The  constitution  is  obeyed,  and 
electors  are  elected,  but  it  is  well  known  for  which 
candidate  the  elector  is  going  to  vote,  before  the 
people  elect  him.  There  is  but  one  case  of  old  date 
in  which  an  elector,  elected  to  vote  for  a  certain 
candidate  for  the  presidency,  voted  for  another,  and 
his  political  character  was  gone  for  life. 

It  is  curious  to  observe  by  what  circuitous  ways 
and  multiplied  elections  it  was  frequently  attempted 
in  the  middle  ages,  to  insure  an  impartial  or  pure 
election.  The  master  of  the  knights  of  Malta  was 
elected  by  no  less  than  seventeen  consecutive 
elections  of  electors,  each  connected  with  oaths;* 
and  the  doge  of  Venice  was  elected  by  nine  different 
acts,  namely  five  elections  alternating  mth  four  acts 
of  drawing  lots,^  with  the  addition  of  collateral 
votings. 

30.  The  representative  principle  farther  requires 
that  the  management  of  the  elections  be  in  the 
hands  of  the  voters,  or  of  a  popular  character ;  that 
especially  the  government  do  not  interfere  with 
them,  either  in  the  election  bureau  itself,  or  by  in- 
decently proposing  and  urging  certain  candidates; 
that  the  house  for  which  the  candidates  are  elected 
be  the  sole  judge  of  the  validity  of  the  election,  and 


2  Vertol's  History  of  the  Knights  of  Malta,  folio  edition,  London, 
1728 ;  vol.  ii.  Old  and  New  Statutes. 

3  Daru,  Histoire  de  Yenise,  Paris,  1821,  vol.  i. 


AND  SELF-GOVERNMENT.  193 

that  the  opening  of  the  poll  do  not  depend  upon  the 
executive,  which  by  mere  omission  might  prevent 
the  entire  election  in  order  to  exclude  a  distasteful 
citizen  from  the  house. 

The  beginning  of  an  election,  the  appointment  of 
managers,  the  protection  of  the  minority  in  this  mat- 
ter, and  the  conscientious  counting  of  votes,  where 
the  ballot  exists,  are  always  matters  of  much  interest 
and  of  great  practical  difficulty,  to  all  those  who 
have  not  traditionally  learned  it.  Collections  of 
election  laws  are  therefore  very  instructive ;  and  the 
labor  of  giving  birth  to  an  election  with  nations  un- 
accustomed to  liberty  is  very  great.  Mr.  Dupont 
gives  some  instructive  and  amusing  anecdotes,  re- 
lating to  the  first  French  elections,  in  his  Memoirs  of 
Mirabeau. 

The  English  law  is  that  all  the  military  must  leave 
the  place  where  an  election  is  going  on,  and  can  only 
enter  it  when  called  in  by  the  town  authorities  or  the 
justices  of  the  peace,  in  case  of  riot. 

The  British  house  of  commons  is  tlie  sole  judge  of 
the  validity  of  elections,  and  the  same  is  declared 
for  the  house  of  representatives  by  the  American 
constitution.'* 

One  of  the  gravest  charges  against  the  duke  oi' 
Polignac  and  his  fellow  members  of  the   cabinet, 


*  A  full  statement  of  all  the  laws  relating  to  these  gu«|iintcea  in 
England  will  be  found  in  Stephens's  De  Loline,  Rise  and  Progress 
of  the  British  Constitution ;  and  Story's  Commentaries  on  the  Con- 
stitution of  the  United  States  gives  our  constitutional  law  on  these 
•uhjects. 

VOL.  I. — 17 


194  ON  CIVIL  LIBERTY 

when  they  were  tried  for  their  lives  after  the  revolu- 
tion of  1830,  was  that  they  had  allowed  or  induced 
Charles  the  Tenth  to  influence  certain  electors,  by 
letter,  to  elect  government  candidates;  while  the 
government  under  the  late  so-called  republic  openly 
supported  certain  persons  as  government  candidates, 
and  bishops  wrote  then  and  have  since  sent  solemn 
pastoral  letters,  calling  on  their  flocks  to  elect  men 
of  certain  political  color.  It  is  wholly  indifferent 
to  decide  here  whether  peculiar  circumstances  made 
this  interference  necessary.  I  simply  maintain  that 
it  is  not  liberty. 

81.  Kepresentative  legislatures  cannot  be  truly  the 
organisms  through  which  public  opinion  passes  into 
public  will,  nor  can  they  be  really  considered  repre- 
sentative bodies,  if  the  members,  or  at  least  the 
members  of  the  popular  branch,  be  not  elected  for  a 
moderately  short  period  only ;  if  the  legislature  does 
not  sit  frequently ;  if  the  elections  for  the  popular 
branch  are  not  for  an  entire  renewal  of  the  house ; 
and  if  the  member  is  made  answerable  for  what  he 
says  in  the  house,  to  any  one  or  any  power  besides 
the  house  to  which  he  belongs. 

What  a  moderately  short  period,  or  the  fre- 
quency of  sessions  means,  cannot,  as  a  matter  of 
course,  be  absolutely  stated.  Fairness  and  practice, 
as  well  as  the  character  of  the  times,  must  necessarily 
settle  these  points.  It  was  enacted  under  Charles 
the  Second,  the  unworthy  king  under  whom  par- 
liament established  many  of  the  best  supports  of 
libert}?",  that  new  parliaments  should  be  held  at  least 
once  in  three  years,  and  the  commons  be  elected  for 


AND  SELF-GOVERNMENT.  195 

that  time.  In  1716,  sir  Robert  Walpole,  the  whig 
premier,  carried  the  septennial  bill,  forced  to  do  it 
by  the  intrigues  of  the  tories,  who  were  for  bringing 
back  the  Stuarts.  This  law  has  ever  since  prevailed, 
but  even  Pitt  called  it,  in  1783,  one  of  the  greatest 
defects  in  the  system  of  popular  representation. 
Chatham,  his  father,  had  expressed  himself  against 
it*  before  him,  and  it  would  really  seem  that  England 
will  return,  at  no  distant  period,  to  a  shorter  period 
of  parliaments.* 

When  count  Villele,  in  182i,  was  desirous  of  di- 
minishing the  liberal  spirit  of  the  French  charter,  he 
introduced  and  carried  a  septennial  bill,  which  was, 
however,  abolished  in  1830  by  the  "July  Revolu- 
tion." Parliaments  for  too  short  a  period  would 
lead  to  a  discontinuous  action  of  government,  and 
unsettle  instead  of  settling;  hence,  they  would  be  as 
much  against  liberty  as  too  long  ones.  In  America, 
two  years  has  become  a  pretty  generally  adopted 
time  for  the  duration  of  legislatures.  It  is  a  re- 
markable fact  that  the  people  in  America  feel  so  per- 
fectly safe  from  attacks  of  the  executive  that,  in 
several  states,  where  the  constitutions  have  been  re- 
vised, a  fundamental  law  has  been  enacted  that  the 
legislature  shall  not  meet  more  often  than  every  two 
years.  This  is  to  avoid  expense  and  over-legislation. 
The  general  principle  remains  true  that  "  parliaments 


5  Volume  14,  page  174,  of  Correspondence  of  William  Pitt,  Earl 
of  Chatham. 

^  I  have  given  a  sufficiently  long  account  of  the  Septennial  Bill, 
under  this  head,  in  the  Encyclopeedia  Americana. 


196  ON  CIVIL  LIBERTY 

ought  to  be  held  frequently,"  as  the  British  Declara- 
tion of  Eights  and  Liberties  enacts  it.  The  consti- 
tution of  the  United  States  makes  the  meeting  and 
dissolution  of  congress  entirely  independent  of  the 
executive,  and  enacts  that  congress  shall  meet  at 
least  once  in  every  year,  on  the  first  Monday  of  De- 
cember, and  that  the  house  of  representatives  shall 
be  entirely  renewed  every  second  year. 

As  to  the  irresponsibility  of  members  for  their 
remarks  in  parliament,  the  declaration  of  rights 
enacts  "  that  the  freedom  of  speech,  and  debates  or 
proceedings  in  parliament,  ought  not  to  be  im- 
peached or  questioned  in  any  court  or  place  out  of 
parliament."  This  was  adopted  by  the  framers  of 
our  constitution,  in  the  words  that  "  for  any  speech 
or  debate  in  either  house,  they  (senators  and  repre- 
sentatives) shall  not  be  questioned  in  any  other 
place." 

32.  A  farther  and  peculiar  protection  is  granted 
to  the  members  of  the  legislature,  both  in  the  United 
States  and  in  England,  by  protecting  them  against 
arrest  during  session,  except  for  certain  specified 
crimes.  The  English  house  of  commons  "for  the 
first  time  took  upon  themselves  to  avenge  their  own 
injur}^,  in  1543,"^  when  they  ordered  George  Ferrers, 
a  burgess  who  had  been  arrested  in  going  to  parlia- 
ment, to  be  released,  and  carried  their  point.  "  But 
the  first  legislative  recognition  of  the  privilege  was 
under  James  the  First."*     The  constitution  of  the 


7  Hallam,  Hist,  of  English  Constitution,  5th  edit.  toI.  i.  p.  268. 
«  Ibidem,  vol.  i.  p.  303. 


AND  SELF-GOVERNMENT.  197 

United  States  enacts  that  senators  and  representa- 
tives shall  "  in  all  cases,  except  treason,  felony,  and 
breach  of  the  peace,  be  privileged  from  arrest  during 
their  attendance  at  the  session  of  their  respective 
houses,  and  in  going  to  and  returning  from  the 
same." 

33.  It  is  farther  necessary  that  every  member  pos- 
sess the  initiative,  or  right  to  propose  any  measure 
or  resolution.  This  is  universally  acknowledged  and 
established  where  Anglican  liberty  exists,  not  by 
enactment,  but  by  absence  of  prohibition,  and  as 
arising  out  of  the  character  of  a  member  of  the  legis- 
lature itself.  In  most  countries,  not  under  the  aegis 
of  Anglican  liberty,  this  right  of  the  initiative  has 
been  denied  the  members,  and  government,  that  is 
the  executive,  has  reserved  it  to  itself.  So  has  the 
so-called  legislative  corps  of  the  present  French  em- 
pire no  initiative.  It  has  indeed  not  even  the  privi- 
lege of  amendment;  it  has  not  even  the  right  of 
voting  on  the  ministerial  estimates,  except  on  the 
whole  estimate  of  one  ministr}''  at  once.'  In  some 
countries,  as  in  France  under  the  charter  of  the  July 
revolution,  the  initiative  is  vested  in  the  houses  and 
in  government;  that  is  to  say,  the  government,  as 
government,  can  propose  a  measure  through  a  minis- 
ter, who  is  not  a  member  of  the  house.  In  England 
no  bill  can  be  proposed  by  the  executive  as  such, 
but  as  every  cabinet  minister  is  either  a  peer  or  must 
contrive  to  be  elected  into  the  commons,  the  ministers 


*  Wliy,  indeed,  it  is   called   legislative  corps  does  not  appear. 
Legislative  corpse  would  bo  intelligible. 

17^ 


198  ON  CIVIL  LIBERTY 

have  of  course  tlie  right  of  the  initiative  as  members 
of  their  respective  houses.  The  constitution  of  the 
United  States  prohibits  any  officer  of  the  United 
States  from  being  a  member  of  either  house,  and  the 
law  does  not  allow  the  members  of  the  administra- 
tion a  seat  and  the  right  to  speak  in  the  houses,  as 
some  think  that  a  law  to  that  effect  ought  to  be 
passed.  The  representatives  of  our  territories  are 
in  this  position ;  they  have  a  seat  in  the  house  of 
representatives,  and  may  speak,  but  have  no  vote. 
A  minister  had  the  right  to  speak  in  either  house, 
under  the  former  French  charters,  in  his  capacity  of 
cabinet  minister,  whether  he  was  a  member  of  the 
house  or  not.  Whenever  the  executive  of  the  United 
States  is  desirous  to  have  a  law  passed,  the  bill  must 
be  proposed  by  some  friend  of  the  administration 
who  is  a  member  of  one  or  the  other  house. 

It  has  been  mentioned  already  that  the  initiative 
of  money  bills  belongs  exclusively  to  the  popular 
branch  of  the  legislature,  both  in  the  United  States 
and  in  England,  by  the  constitution  in  the  one,  and 
by  ancient  usage,  which  has  become  a  fundamental 
principle,  in  the  other. 


AND  SELF-GOVERNMFA'T.  199 


CIIAPTEE   XVII. 

PARLIAMENTARY  LAAV  AND  USAGE.     THE  SPEAKER. 
TWO  HOUSES.     THE  VETO. 

34.  It  is  not  only  necessary  that  the  legislature 
be  the  sole  judge  of  the  right  each  member  may 
have  to  his  seat,  but  that  the  whole  internal  manage- 
ment and  the  rules  of  proceeding  with  the  business 
belong  to  itself.  It  is  indispensable  that  the  legis- 
lature possess  that  power  and  those  privileges  which 
are  necessary  to  protect  itself  and  its  own  dignity, 
taking  care  however  that  this  power  may  not,  in 
turn,  become  an  aggressive  one. 

In  this  respect  are  peculiarly  important  the  pre- 
siding officer  of  the  popiilar  branch  or  speaker,  the 
parliamentary  law,  and  the  rules  of  the  houses. 

The  speaker  of  the  English  commons  was  in 
former  times  very  dependent  on  the  crown.  Since 
the  revolution  of  1G88,  his  election  may  be  said  to 
have  become  wholly  independent.  It  is  true  that 
the  form  of  obtaining  the  consent  of  the  monarcli 
is  still  gone  through,  but  it  is  a  form  only,  and  a 
change  of  the  administration  would  unquestionably 
take  place,  were  the  ministers  to  advise  the  crown 
to  withhold  its  consent. 


200  ON  CIVIL  LIBERTY 

"Were  the  refusal  insisted  on,  disturbances  would 
doubtless  follow,  whicli  would  end  in  a  positive  de- 
claration and  distinct  acknowledgment  on  all  hands, 
that  the  choice  of  the  speaker  "  belongs,  and  of  right 
ought  to  belong"  to  the  house  of  commons.  There 
is  no  danger  on  that  score  in  England,  so  long  as  a 
parliamentary  government  exists  there  at  all.  The 
growth  of  the  commons'  independence  in  this  respect 
is  as  interesting  a  study  as  it  is  historically  to  trace 
step  by  step  any  other  expanding  branch  of  British 
liberty. 

The  constitution  of  the  United  States  says  that 
"the  house  of  representatives  shall  choose  their 
speaker  and  other  officers,"  and  so  chosen,  he  is 
speaker,  without  any  other  sanction. 

The  charter  granted  by  Louis  the  Eighteenth,  of 
France,  prescribed  that  "  the  president  of  the  cham- 
ber of  deputies  is  nominated  by  the  king  from  a  list 
of  five  members  presented  by  the  chamber."  This 
was  altered  by  the  revolution  of  1830,  and  the 
charter  then  adopted  decreed  that  "  the  president  of 
the  chamber  of  deputies  is  to  be  elected  by  the 
chamber  itself  at  the  opening  of  each,  session." 
It  need  not  be  added  that,  according  to  the  "con- 
stitution of  the  empire,"  the  emperor  of  the  French 
simply  appoints  the  president  of  the  "legislative 
corps."  In  all  the  states  of  the  Union  the  speakers 
are  within  the  exclusive  appointment  of  the  houses. 
In  the  British  colonial  legislatures,  the  speaker  must 
be  confirmed  by  the  governor,  but,  as  was  observed 
of  the  speaker  of  the  commons,  if  consent  be  refused 
it  would  be   a  case  of  disasrreement  between  the 


AND  SELF-GOVERXMENT.  201 

administration  and  the  legislature,  wliich  must  be 
remedied  either  by  a  new  administration  or  a  new 
house — that  is  new  elections. 

The  presiding  officer  of  the  upper  house  is  not 
made  thus  dependent  upon  it.  In  Engkmd,  the 
chief  officer  of  the  law,  the  lord  chancellor  or  keeper 
of  the  seals,'  presides  over  the  house  of  peers.  There 
seems  to  be  a  growing  desire  in  England  wholly  to 
separate  the  lord  chancellor  from  the  cabinet  and 
politics.  At  present  he  is  always  a  member  of  the 
administration,  and,  of  course,  leaves  his  office  when 
the  cabinet  to  which  he  belongs  goes  out.  It  will 
be  an  interesting  subject  to  determine  who  shall  pre- 
side over  the  lords,  if  the  change  thus  desired  by 
many  should  take  place. 

The  United  States  senate  is  presided  over  by  the 
vice-president  of  the  United  States,  who  is  elected  by 


'  A  keeper  of  the  seals,  whom  usage  does  not  require  to  be  a  peer, 
is  now  appointed  as  the  chief  ofhcer  of  the  law,  only  when  for  some 
reason  or  other  no  lord  chancellor  is  appointed.  The  keeper  of 
the  seals  nevertheless  presides  in  the  house  of  lords,  or  "sits  on 
the  woolsack."  The  chancellor  is  now  always  made  a  peer  if  he  is 
not  already  a  member  of  the  house  of  lords,  and  he  is  always  a 
member  of  the  cabinet.  This  mixture  of  a  judicial  and  political 
character  is  inadmissible  according  to  American  views;  yet  it  ought 
to  be  remembered  as  an  lionoriible  fact,  that  no  comj)laint  of  par- 
tiality has  been  made  in  modern  times  against  any  lonl  cliauccllor 
in  his  judicial  capacity,  altliougli  he  is  so  deeply  mi.xcd  uji  with 
politics.  Lord  Eldon  was  probably  as  uncompromising,  and,  per- 
haps, as  bigoted  a  politician  as  has  ever  been  connected  with  public 
affairs,  but  I  am  not  aware  that  any  suspicion  has  existed  on 
this  ground  against  his  judicial  impartiality.  There  is  at  present 
a  traditional  fund  of  uncomjiromising  judicial  rectitude  in  England 
which  has  never  been  so  great  at  any  other  period  of  her  own  his- 
tory, or  excelled  in  any  other  country. 


202  ON  CIVIL  LIBERTY 

the  Union  at  large,  as  the  president  is.  It  must  be 
observed,  however,  that  neither  the  chancellor  on 
the  woolsack,  nor  the  vice-president  of  the  United 
States,  as  president  of  the  senate,  exercises  any  influ- 
ence over  their  respective  legislative  bodies,  that  can 
in  any  degree  be  compared  to  that  of  the  speakers 
over  their  houses.  The  American  senate  and  the 
British  house  of  lords  allow  but  very  little  power 
in  regulating  and  appointing,  to  the  presiding  officer, 
who  interferes  only  when  called  upon  to  do  so.* 

The  power  of  the  houses  of  parliament  over  per- 
sons that  are  not  members,  or  the  privileges  of  par- 
liament, or  of  either  house,  so  far  as  they  aftect  the 
liberty  of  individuals  and  the  support  of  their  own 
power,  constitute  what  is  called  parliamentary  law 
— an  important  branch  of  the  common  law.  Like 
all  common  law,  it  consists  in  usage  and  decisions ; 
there  are  doubtful  points  as  well  as  many  firmly 
settled  ones.  It  must  be  learned  from  works  such 
as  Hatsell's  Precedents,  &c.,  Townsend's  History  of 
the  House  of  Commons,  and  others. 


2  This  difiFerence  in  the  position  of  the  presiding  oflBcers  appears 
among  other  things  from  the  fact  that  the  members  of  the  house 
of  lords  address :  "My  lords,"  and  not  the  chancellor,  while  usage 
and  positive  rules  demand  that  the  member  of  the  other  house 
who  wishes  to  speak  shall  address  "Mr.  Speaker,"  and  receive 
"the  floor"  from  him.  The  chancellor  would  only  give  the  floor  if 
appealed  to  in  case  of  doubt.  In  the  United  States  senate,  the 
president  of  the  senate  is,  indeed,  directly  addressed,  although 
occasionally  "  senators"  have  been  addressed  in  the  coiirse  of  a 
speech.  That  body,  however,  appoints  its  committees,  and  leaves 
little  influence  to  the  presiding  oflicer,  who,  it  will  be  remembered, 
is  not  a  member  of  the  senate,  and  has  a  casting  vote  only. 


AND  SELF-GOVERNMENT.  203 

As  a  general  remark  it  may  be  stated  that,  with 
the  rise  of  liberty  in  England,  the  jealousy  of  the 
house  of  commons  also  rose,  and  continued  during 
the  period  of  its  struggle  with  the  executive;  and 
that,  as  the  power  of  the  house  has  become  con- 
firmed and  acknowledged,  the  jealousy  of  the  house 
has  naturally  abated.  I  very  much  doubt  whether  at 
any  earlier  period  the  committee  of  privileges  would 
have  made  the  same  declaration  which  it  made  after 
lord  Cochrane,  in  1815,  had  been  arrested  by  the 
marshal  of  the  king's  bench,  while  sitting  on  the 
privy  councillors'  bench  in  the  house  of  commons, 
prayers  not  yet  having  been  read.  The  committee 
declared  that  "the  privileges  of  parliament  did  not 
appear  to  liave  been  violated  so  as  to  call  for  the 
interposition  of  the  house."'' 

The  two  American  houses  naturally  claim  the 
"power  of  sending  for  persons  and  papers  and  of 
examining  upon  oath,"  and  they  have  also  exercised 
the  power  of  punishing  disturbances  of  their  debates 
by  intruders,  and  libellers  of  members  or  whole  houses. 
But  no  power  to  do  so  is  explicitly  conferred  by  the 
constitution  of  the  United  States.* 


*  I  would  refer  the  general  reader,  on  this  and  kindred  suhject-s, 
to  the  article  Parliament,  in  the  Political  Dictionary,  Lond.  184''.. 

*  This  is  not  the  place  for  discussing  the  doubts  which  sorac  hnvo 
entertained  regarding  the  power  of  the  houses  of  congress  to  do 
that  which  is  possessed  by  every  court  of  justice,  though  the  lowest, 
namely  to  arrest  and  punish  disturbers.  The  doubt  is  simply  on 
the  ground  that  it  has  not  been  conferred.  Rut  there  are  certain 
rights  which  flow  directly  from  the  existence  of  a  thing  itself,  and 
some  that  are  the  necessary  consequence  of  action  and  life,  and 
without  which   neither  can    manifest    itself      A  legislative   body 


204:  ON  CIVIL  LIBERTY 

Of  far  greater  importance  is  the  body  of  the  rules 
of  procedure  and  that  usage  which  has  gradually 
grown  up  as  a  part  of  common  law,  by  which  the 
dispatch  of  parliamentary  business  and  its  protection 
against  impassioned  hurry  are  secured,  and  by  which 
the  order  and  freedom  of  debate,  fairness,  and  an 
organic  gestation  of  the  laws  are  intended  to  be  ob- 
tained. The  development  of  parliamentary  practice, 
or  rules  of  proceeding  and  debate,  such  as  it  has 
been  developed  by  England,  independently  of  the 
executive,  and  like  the  rest  of  the  common  law  been 
carried  over  to  our  soil,  forms  a  most  essential  part 
of  our  Anglican  constitutional,  parliamentary  liberty. 
This  practice,  as  we  will  call  it  for  brevity's  sake,  is 
not  only  of  the  highest  importance  for  legislatures 
themselves,  but  serves  as  an  element  of  freedom  all 
over  the  country,  in  every  meeting,  small  or  large, 
primary  or  not.  It  is  an  important  guarantee  of 
liberty,  because  it  serves  like  the  well  worn  and 
banked  bed  of  a  river,  which  receives  the  waters 
that  without  it  would  either  lose  their  force   and 


without  the  power  of  sending  for  persons  to  be  exnmined  by  com- 
mittees, would  be  forced  to  legislate,  in  many  cases,  in  the  dark.  It 
is  true  that  legislative  bodies  have  become  tyrannical ;  but  it  must 
not  be  forgotten  that  wherever,  in  the  wide  range  of  history,  any 
struggle  for  liberty  has  taken  place,  we  find  that  a  stniggle  to 
establish  the  habeas  corpus  principle  has  always  accompanied  it, 
and  that  this  struggle  for  securing  personal  liberty  is  always  against 
the  executive.  I  do  not  remember  a  single  case  of  an  established 
and  separate  guarantee  of  personal  liberty  against  parliamentary 
violence. 

The  reader  is  referred  to  Mr.  Justice  Story's  Comm.  on  the 
Const.  U.  S.  chap,  xii.,  and  to  Chancellor  Kent's  Commentaries. 


AND  SELF-GOVEKNMENT.  205 

use,  by  spreading  over  plains,  or  become  ruinous  by 
their  impetuosity  when  meeting  with  obstacles. 
Every  other  nation  of  antiquity  and  moderii  times 
has  severely  suffered  from  not  having  a  parliamentary 
practice  such  as  the  Anglican  tribe  possesses,  and  no 
one  familiar  with  history  and  the  many  attempts  to 
establish  liberty  on  the  continent  of  Europe  or  in 
South  America,  can  help  observing  how  essentially 
important  that  practice  is  to  us,  and  how  it  serves  to 
ease  liberty,  if  we  may  say  so. 

It  is  not  a  French  "  rcglement,"  prescribed  by  the 
executive  with  but  little  room  for  self-action ;  nor 
does  it  permit  legislative  disorder  or  internal  anarchy. 
It  has  been  often  observed  that  the  want  of  parlia- 
mentary practice  created  infinite  mischief  in  the  first 
French  revolution.  Uumont  observes  that  there  was 
not  even  always  a  distinct  proposition  before  the 
convention ;  and  the  stormiest  sessions,  which  fre- 
quently ended  by  the  worst  decrees — the  dccrds 
d^ acclamation  —  were  those  in  which  there  were 
speeches  and  harangues  without  propositions.  Sir 
Samuel  Eomilly*  says :  "  If  one  single  rule  had  been 
adopted,  namely  that  every  motion  should  be  reduced 
into  writing  in  the  form  of  a  proposition  before  it 
was  put  from  the  chair,  instead  of  proceeding,  as  was 
their  constant  course,  by  first  resolving  the  principle 
as  they  called  it  (d^creter  le  principe),  and  leaving 
the  drawing  up  of  what  they  had  so  resolved  (or,  as 
they  called  it,  la  redaction)  for  a  subsequent  operation, 


*  He  was  himself  of  unmixed  French  descent,  as  lord  Broiiplinni 
observer,  although  his  family  liad  resided  for  generations  in  England. 
VOL.  I. — 18 


206  ON  CIVIL  LIBERTY 

it  is  astonishing  how  great  an  influence  it  would  have 
had  in  their  debates  and  on  their  measures."^ 

The  great  importance  of  the  subject  and  the  gene- 
ral superiority  of  the  English  parliamentary  practice 
have  been  acknowledged  by  French  writers,  practi- 
cally acquainted  with  the  subject,  and  especially  in  a 
work  the  full  title  of  which  I  shall  give  in  a  note, 
because  it  shows  its  interesting  contents/ 

Foreigners  frequently  express  their  surprise  at 
the  ease  with  which  in  our  country  meetings,  socie- 
ties, bodies,  communities,  and  even  territories^  self- 
constitute  and  organize  themselves,  and  transact 
business  without  violence,  and  without  any  force  in 
the  hands  of  the  majority  to  coerce  the  minority,  or 
in  the  hands  of  the  minority  to  protect  itself  against 


^  Memoirs  of  the  Life  of  Sir  Samuel  Romilly,  &c.  2d  edit.  vol.  i. 
p.  103. 

'  A  Treatise  on  the  Formation  of  Laws  (Traite  de  la  Confection 
des  Lois),  or  an  Inquiry  into  the  Rules  (R^glements)  of  the  French 
Legislative  Assemblies,  compared  with  the  Parliamentary  Forms  of 
England,  the  United  States,  of  Belgium,  Spain,  Switzerland,  &c., 
by  Ph.  Vallette,  Advocate,  &c.,  and  Secretary  of  the  Presidency  of 
the  Chamber  of  Deputies,  and  by  Benat  Saint-Martin,  Advocate, 
&c.,  2d  edit.  Paris,  1839;  with  the  words  of  Mr.  Dunin,  who  long 
presided  over  the  chamber,  as  motto:  "The  excellence  of  laws  de- 
pends especially  upon  the  care  taken  with  the  elaboration  of  the 
bills.  The  drawing  up  of  laws  constitutes  a  large  share  of  their 
efiBciency." 

^  As  a  striking  instance  may  be  mentioned  the  whole  procedure 
of  the  people  of  Oregon  when  congress  omitted  to  organize  the 
territory,  and  ultimately  "Organic  Laws"  were  adopted  "until 
such  time  as  the  United  States  of  America  extend  their  jurisdic- 
tion over  us."  They  were  printed  by  the  senate.  May  21,  1846, 
and  form  a  document  of  great  interest  to  the  political  philosopher 
in  more  than  one  respect. 


AND  SELF-GOVERNMENT.  207 

the  majority.  One  of  the  chief  reasons  of  this  phe- 
nomenon is  the  universal  familiarity  of  our  people 
with  parliamentary  practice,  which  may  be  observed 
on  board  of  any  steamboat  where  a  number  of  per- 
sons, entire  strangers  to  one  another,  proceed  to  pass 
some  resolution  or  other,  and  which  they  learn  even 
as  children.  There  are  few  schools  the  members  of 
which  have  not  formed  some  debating  society,  in 
which  parliamentary  forms  are  strictly  observed,  and 
in  which  the  rigorously  enforced  fine  impresses  upon 
the  boy  of  ten  or  eleven  years  the  rules  which  the 
man  of  forty  follows  as  naturally  as  he  bows  to  an 
acquaintance.' 

The  U.  S.  Constitution  says  that  "  each  house  may 
determine  the  rules  of  its  proceedings,  punish  its 
members  for  disorderly  behavior,  and,  with  the  con- 
currence of  two-thirds,  expel  a  member,"  If,  how- 
ever, the  parliamentary  practice  had  not  already 
been  spread  all  over  the  colonies,  like  the  common 
law  itself,  this  power,  justly  and  necessarily  conferred 
on  each  house,  would  have  been  of  comparatively 
little  advantage.  Parliamentary  practice — that  ars 
obsletrix  animarum,  as  Mr.  Bentham  calls  it,  but  it 
ought  to  be  called  the  obstetric  art  of  united  bodies 
of  men,  for  in  this  lies  the  difficulty — is  not  a  thing 
to  be  invented  nor  to  be  decreed,  but  must  be  de- 
veloped.'" 


9  An  excellent  book  of  it3  kind  is  the  smnll  work  of  judge  L.  S. 
Gushing,  Rules  of  Proceeding  and  Debate  in  Deliberative  Assem- 
blies, Boston,  Mass.  It  has  gone  through  many  editions.  The 
author  is  engaged  in  a  large  work  on  parliamentary  law,  and  we 
hope  he  will  be  able  to  give  it  to  the  public  at  no  distant  period. 

'"  Mr.  Jeremy  Rentham's  Tactique  des  AssembltSes  Wgislative, 


208  ON  CIVIL  LIBERTY 

It  is  not  only  a  guarantee  of  the  free  share  of 
every  representative  in  the  legislation  of  his  coun- 
try, but  it  is  also,  as  has  been  indicated,  a  guarantee 
for  the  people  that  its  legislature  remain  in  its  proper 
bounds,  and  that  laws  be  not  decreed  as  the  effects 
of  mere  impulse  and  passion. 

It  is  a  psychological  fact  that  whatever  excites  a 
number  of  separate  individuals  will  excite  them  still 
more  when  brought  together,  by  mutual  countenance 
and  that  psychical  reduplication  which,  for  bad  or 
good,  has  a  powerful  effect  wherever  individuals 
of  the  same  mind  or  acting  under  the  same  impulse 
come  in  close  contact.  Parliamentary  practice,  as  we 
possess  it,  is  as  efl&cient  a  means  to  calm  and  to  regu- 
late these  excitements,  as  the  laws  of  evidence  and 
the  procedure  of  courts  are  in  tempering  exciting 
trials  and  impassioned  pleadings,  and  in  preventing 
the  mischief  they  would  otherwise  produce. 


edited  by  E.  Dumont,  Geneva,  1816,  is  no  pure  invention,  and  could 
have  been  written  by  an  Englishman  or  American  only. 

See  also  Mr.  Jeiferson's  Manual  of  Parliamentary  Practice  for 
the  use  of  the  Senate  of  the  United  States. 

There  is  a  very  curious  book.  Parliamentary  Logic,  &c.,  by  Right 
Hon.  W.  Gerard  Hamilton  (called  in  his  time  single-speech  Ham- 
ilton), ■with  considerations  on  the  Corn  Laws  by  Dr.  Samuel  John- 
son, London,  1808.  The  copy  which  I  own  belonged  to  Dr.  Thomas 
Cooper.  That  distinguished  man  has  written  the  following  remark 
on  the  fly-leaf:  "This  book  contains  the  theory  of  deception  in 
parliamentary  debate  ;  how  to  get  the  better  of  your  opponent,  and 
how  to  make  the  worse  appear  the  teller  reason.     It  is  the  well 

written  work  of  a  hackneyed  politician The  counterpart  to 

it  is  the  admirable  tract  of  Mr.  Jeremy  Bentham  on  Parliamentary 
Logic,  the  book  of  Fallacies.  No  politician  ought  to  be  ignorant  of 
the  one  book  or  the  other.  They  are  tcell  worth  (not  perusing,  but) 
studying."  "T.  C." 


AND  SELFGOVE-RNMENT.  20R 

These  remarks  may  fitly  conclude  with  the  words 
of  judge  Story,  which  he  uttered  when  he  left  the 
speaker's  chair  of  the  Massachusetts  house  of  repre- 
sentatives, to  take  his  seat  on  the  bench  of  the 
supreme  court  of  the  United  States.  They  ought  to 
be  remembered  by  every  one  on  both  sides  of  the  At- 
lantic that  prizes  practical  and  practicable  liberty : 

"  Cheered,  indeed,  by  your  kindness,  I  have  been 
able,  in  controversies,  marked  with  peculiar  political 
zeal,  to  appreciate  the  excellence  of  those  established 
rules  which  invite  liberal  discussions,  but  define  the 
boundary  of  right,  and  check  the  intemperance  of 
debate.  I  have  learned  that  the  rigid  enforcement 
of  these  rules,  while  it  enables  the  majority  to  mature 
their  measures  with  wisdom  and  dignity,  is  the  only 
barrier  of  the  rights  of  the  minority  against  the  en- 
croachments of  power  and  ambition.  If  anything 
can  restrain  the  impetuosity  of  triumph,  or  the  vehe- 
mence of  opposition — if  anything  can  awaken  the 
glow  of  oratory,  and  the  spirit  of  virtue — if  anything 
can  preserve  the  courtesy  of  generous  minds  amidst 
the  rivalries  and  jealousies  of  contending  partic^i,  it 
will  be  found  in  the  protection  with  which  these 
rules  encircle  and  shield  every  member  of  the  legis- 
lative body.  Permit  me,  therefore,  with  the  sincerity 
of  a  parting  friend,  earnestly  to  recommend  to  your 
attention  a  steady  adherence  to  those  venerable 
usages."" 

3o.    If  parliamentary  practice  is  a  g\iarantee  of 


"  Life  and  Letters  of  Joseph  Story,  Boston,  Muss.  IBiil,  vol.  i. 
p.  203. 

18^ 


210  ON  CIVIL  LIBERTY 

liberty  by  excluding,  in  a  high  degree,  impassioned 
legislation,  and  aiding  in  embodying  in  the  law  the 
collective  mind  of  the  legislature,  the  principle  of 
two  houses,  or  the  bicameral  system,  as  Mr.  Ben- 
tham  has  called  it,  is  another  and  no  less  efficient 
guarantee. 

Practical  knowledge  alone  can  show  the  whole 
advantage  of  this  Anglican  principle,  according  to 
which  we  equally  discard  the  idea  of  three  and  four 
estates  and  of  one  house  only.  Both  are  equally 
and  essentially  un- Anglican.  Although,  however, 
practice  alone  can  show  the  whole  advantage  that 
may  be  derived  from  the  system  of  two  houses,  it 
must  be,  nevertheless,  a  striking  fact  to  every  in- 
quirer in  distant  countries,  that  not  only  has  the 
system  of  two  houses  historically  developed  itself  in 
England,  but  it  has  been  adopted  by  the  United 
States,  and  all  the  thirty-one  states  as  well  as  the 
six  now  existing  territories,  and  by  all  the  British 
colonies,  where  local  legislatures  exist.  We  may 
mention  even  the  African  state  of  Liberia.  The 
bicameral  system  accompanies  the  Anglican  race 
like  the  common  law,'^  and  everywhere  it  succeeds ; 
while  no  one  attempt  at  introducing  the  unicameral 
system,  in  larger  countries,  has  so  far  succeeded. 
France,  Spain,  Naples,  Portugal — in  all  these  coun- 


'2  No  instance  illustrating  this  fact  is  perhaps  more  striking  than 
the  meeting  of  settlers  in  Oregon  Territory,  when  congress  had 
neglected  to  provide  for  them,  as  has  been  mentioned  in  a  previous 
note.  The  people  met  for  the  purpose  of  establishing  some  legis- 
lature for  themselves,  and  at  once  adopted  the  pirinciple  of  two 
houses.     It  is  to  us  as  natural  as  the  jurv. 


AND  SELF-GOVERNMENT.  211 

tries  it  has  been  tried,  and  everywhere  it  has  failed. 
The  idea  of  one  house  flows  from  that  of  the  unity 
of  power,  so  popular  in  France.  The  bicameral 
system  is  called  by  the  advocates  of  democratic  unity 
of  power  an  aristocratic  institution.  This  is  an  utter 
mistake.  In  reality  it  is  a  truly  popular  principle 
to  insist  on  the  protection  of  a  legislature  divided 
into  two  houses ;  and  as  to  the  historical  view  of  the 
question,  it  is  sufficient  to  state  that  two  houses  have 
been  insisted  upon  and  rejected  by  all  parties,  aris- 
tocratic and  popular,  according  to  the  circumstances 
of  the  times.  In  this  the  princi])le  resembles  the  in- 
struction of  the  representative  by  liis  constituents. 
This  too  has  been  insisted  on  and  rejected  by  all 
parties. 

A  few  attempts  Avere  made  in  our  earlier  times  to 
establish  a  single  house,  for  instance  in  Pennsylvania, " 
but  the  practical  and  sober  sense  of  the  Anglican 
people  soon  led  them  back  to  the  two  houses.  Mr. 
de  Lamartine  pronounced  the  true  reason  why  we 
ought  to  hold  fast  to  the  bicameral  system,  although 
he  spoke  against  it.  "When  in  the  last  French 
constituent  assembly  Mr.  Odillon  Barrot  had  urged 
with  ability  the  adoption  of  two  houses,  Mr.  de 
Lamartine  replied  that  the  great  principle  of  unity 
(he  meant,  no  doubt,  of  centralization)  required  the 
establishment  of  one  house,  and  tliat,  unless  the  legis- 


'»  It  was  at  the  period  when  Dr.  Frnnklin  nskc<l  why  people  would 
put  li(jrscs  not  only  before  but  also  beliiml  the  wnpon,  pulling  in 
opposite  directions  ?  The  true  answer  would  have  been,  that  wiu-ii- 
ever  a  vehicle  is  pulled  down  an  inclined  plane  we  actually  do  employ 
an  impeding  force  to  prevent  its  bcinfi  dnsliod  to  pieces. 


212  ON  CIVIL  LIBERTY 

lature  was  vested  in  one  house  alone,  it  would  be  too 
difficult  to  make  it  pass  over  from  a  simple  legislature 
to  an  assembly  with  dictatorial  power.  This  is  pre- 
cisely the  danger  to  be  avoided.''*  Parliamentary 
practice  and  the  two-house  system  are  subjects  of 
such  magnitude  that  it  is  impossible  here,  where 


•'•  The  speech  was  delivered  on  the  27th  September,  1848.  Mr. 
de  Lamartine  speaks  of  a  division  of  the  sovereignty  into  two  parts, 
by  two  houses!  Poor  sovereignty!  What  strange  things  have 
been  imagined  under  that  word!  If  the  reader  can  find  access 
to  that  speech,  I  advise  him  to  peruse  it,  for  it  is  curious  from 
beginning  to  end,  especially  as  coming  from  one  who  for  a  time  was 
one  of  the  rulers  of  France.  His  exact  words  are  these.  Speak- 
ing of  domestic  dangers,  he  says:  "To  such  a  danger  you  must 
not  think  of  opposing  two  or  three  powers.  That  which  ought  to 
oppose  it  is  a  direct  dictatorship,  uniting  within  its  hand  all  the 
powers  of  the  state."  He  adds  more  of  the  kind,  but  this  extract 
will  suffice. 

Mr.  Lamartine  committed  another  grave  error.  He  said  that  two 
houses  in  the  United  States  were  natural,  because  we  are  a  con- 
federacy, and  the  senate  wa/S  established  to  represent  the  states  aff 
such.  But  he  seems  not  to  have  been  aware  that  all  our  states,  in 
their  unitary  character,  have  established  the  same  system,  and  that 
it  is  as  natural  to  the  men  on  the  shores  of  the  Pacific  as  to  those 
iu  Maine,  or  to  the  settlers  on  the  Swan  River. 

I  ought  in  justice  to  add,  however,  that  in  1850  Mr.  dc  Lamar- 
tine said,  in  his  Counsellor  of  the  People,  that  he  was  now  for  two 
houses,  and  that  he  had  been  for  one  house  in  1848  because  he 
wanted  a  dictatorial  power;  and,  added  he.  La  dictature  ne  se 
divise  pas.  But  how  can  a  dictatorship  be  called  undivided,  when 
it  belongs  to  a  house  composed  of  eight  hundred  members  ?  And 
must  not,  in  the  nature  of  things,  a  division  of  execution  always 
take  place  ?  It  is  surprising  that  something  temporarily  desired  for 
a  dictatorship  should  have  been  insisted  upon  by  Mr.  Lamartine 
with  so  much  vehemence  as  an  integral  part  of  the  fundamental 
law,  or  was  peradventure  the  constitution  of  1848  intended  not  to 
last  ? 


AND  SELF-GOVERNMENT.  213 

they  are  mentioned  as  guarantees,  to  enter  upon 
details ;  but  I  cannot  dismiss  them  without  recom- 
mending them  to  the  serious  and  rcjicated  attention 
of  every  one  who  may  have  looked  upon  them  as 
accidents  rather  than  essentials. 

To  have  a  measure  discussed  entirely  de  novo  by 
a  different  set  of  men,  with  equal  powers,  and  com- 
bined upon  a  different  basis — this,  and  the  three 
readings,  with  notice  and  leave  of  bringing  in,  and 
the  going  into  committee  before  the  third  reading, 
have  a  wonderful  effect  in  sifting,  moderating,  disco- 
vering, and  in  enlightening  the  country.  Take  the 
history  of  any  great  act  of  parliament  or  congress, 
and  test  what  has  been  asserted.  This  effect  of  two 
houses,  and  the  rules  of  procedure  just  mentioned, 
are  alone  like  so  many  pillars  to  the  fabric  of  liberty. 

The  question  has  indeed  been  asked,  why  should 
there  be  two  chambers  ?  What  philosophical  prin- 
ciple is  there  enshrined  in  this  number?  All  we 
would  answer  is,  that  it  has  been  found  that  more 
than  one  house  is  necessary,  and  more  than  two  is 
too  many.  Three  and  even  four  houses  belong  to 
the  mediaeval  estates  and  to  the  deputative,  not  to  the 
modern  national  representative  system.  The  mischief 
of  three  houses  is  as  great  as  that  of  three  parties. 
The  weakest  becomes  the  deciding  one  by  a  casting 
vote.  And  one  house  only  belongs  to  centralization. 
It  is  incompatible  with  a  government  of  a  co-opera- 
tive character,  which  we  hold  to  be  the  government 
of  freedom. 

I  cannot  agree  with  the  opinion  expressed  by  lord 
Brougham  in  his  work  on  Political  Philosophy,  that 


214  ON  CIVIL  LIBERTY 

it  ia  essentially  necessary  that  the  composition  of  the 
two  houses  should  be  based  upon  entirely  different 
principles,  meaning  that  the  one  ought  not  to  be 
elective,  and  that  it  ought  to  represent  entirely  dif- 
ferent interests.  A  thorough  discussion  of  this  sub- 
ject belongs  to  the  province  of  politics  proper,  but  I 
ask  the  reader's  indulgence  for  a  few  moments. 

If  the  two  houses  were  elected  for  the  same  period 
and  by  the  same  electors,  they  would  amount  in 
practice  to  little  more  than  two  committees  of  the 
same  house;  but  we  want  two  bona  fide  different 
houses,  representing  the  impulse  as  well  as  the  con- 
tinuity, the  progress  and  the  conservatism,  the  on- 
ward zeal  and  the  retentive  element,  which  must 
ever  form  integral  elements  of  all  civilization.  One 
house,  therefore,  ought  to  be  large ;  the  other,  com- 
paratively small  and  elected  or  appointed  for  a  longer 
time.  Now  as  to  the  right  of  sitting  in  the  smaller 
or  upper  house,  of  longer  duration,  there  are  different 
modes  of  bestowing  it.  It  may  be  hereditary,  as  the 
English  peers  proper  are  hereditary ;  or  the  members 
may  have  seats  for  life  and  in  their  personal  capa- 
city, as  the  French  peers  had  under  the  charter. 
This  is  probably  the  worst  of  all  these  methods.  It 
gives  great  power  to  the  crown  and  keeps  the  house 
of  peers  in  a  state  of  submission,  which  hereditary 
peers  do  not  know.  Or,  again,  the  members  may  be 
elected  for  life  by  a  class,  as  Scottish  representative 
peers  are  elected  by  the  Scottish  nobility  for  the 
British  house  of  peers;  or  the  members  may  be 
similarly  elected  for  one  parliament  alone,  as  the 
Irish  peers  are  that  sit  in  parliament ;  or  the  people 


AND  SELF-GOVERNMENT.  215 

may  elect  senators  for  life,  or  for  a  shorter  time, 
as  the  senators  of  Belgium,  and  all  the  senators 
in  our  states,  are;  or,  lastly,  the  members  of  the 
house  we  are  speaking  of  may  be  elected,  not  by 
the  people  in  their  primary  capacity,  but  by  differ- 
ent bodies,  such  as  our  senators  are.  The  senators 
of  the  Ufiited  States  are  elected  by  the  states,  as 
states,  consequently  an  equal  number  of  representing 
senators  is  given  to  each  state  irrespective  of  its  size 
or  population. 

It  would  be  very  difficult  to  pronounce  the  one 
or  the  other  principle  absolutely  the  best,  without 
reference  to  circumstances,  and  we  are  sure  that  lord 
Brougham  would  be  the  last  man  that  would  main- 
tain the  absolute  necessity  of  having  a  hereditary 
peerage  wherever  two  houses  exist.  As  to  the 
classes,  or  interests,  however,  which  ought  to  be  re- 
presented, I  would  only  state  that  the  idea  belongs 
to  the  middle  ages,  and,  if  adopted,  would  lea<l  at 
once  to  several  estates  again.  It  is  hostile  to  the  idea 
of  two  houses.  Why  represent  the  interests  of  the 
nation  in  two  houses  ?  Arc  there  not  more  broad 
national  interests  ?  It  would  be  difficult  indeed  to 
understand  why  the  landowner  in  present  England 
should  have  his  house  and  not  the  manufacturer,  the 
merchant,  the  wide  educational  interest,  the  sauitary 
interest,  the  artisan,  the  literary  interest  with  the 
journalism.  The  excellence  of  the  bicameral  system 
in  our  representative  (and  not  deputative)  govern- 
ment does  not  rest  on  the  represcntjition  of  different 
interests,  but  on  the  different  modes  of  composing 
the  houses  and  their  different  duration. 


216  ON  CIVIL  LIBERTY 

On  the  otiier  hand  we  may  observe  that,  when  in 
1848  the  French  established  a  legislature  of  one 
house,  they  found  themselves  obliged  to  establish, 
by  the  constitution,  a  council  of  state,  as  the  Athe- 
nians established  the  council  (boule)  to  aid  the 
general  assembly  (ecclesia).  The  French  knew,  in- 
stinctively if  not  otherwise,  that  a  single  house  of 
French  representatives  would  be  exposed  to  the 
rashest  legislation.  The  council  of  state,  however, 
is  not  public,  the  members  are  appointed  by  the 
executive ;  in  one  word,  what  was  gained  ?  Much 
indeed  was  lost. 

Whether  the  representative  is  the  representative 
of  his  immediate  constituents  or  of  the  nation  at 
large,  whether  he  ought  to  obey  instructions  sent 
him  by  his  constituents — on  these  and  other  subjects 
connected  with  them  I  have  treated  at  great  length 
in  my  Political  Ethics.  I  shall  simply  mention  here 
the  fact  that  civil  liberty  distinctly  requires  that  the 
representative  be  the  representative  of  his  political 
society  at  large,  and  not  of  his  election  district.  The 
idea  that  he  merely  represents  his  immediate  con- 
stituents is  an  idea  which  belongs  to  the  middle  ages 
and  their  deputative  system, — not  to  our  far  nobler 
representative  system. 

86.  I  hesitate  whether  I  ought  to  enumerate  the 
Veto  as  an  Anglican  guarantee  of  liberty.  I  hold  it 
to  be  in  our  political  system  a  check  upon  the  legis- 
lature, and  therefore  a  protection  to  the  citizen ; 
one  that  can  be  abused  and  probably  has  been 
abused,  but  everything  intrusted  to  the  hands   of 


AND  SELF-GOVERNMENT.  217 

man  may  be  abused.  The  question  concerns  its 
probable  average  operation. 

Altliougli  the  veto  is  thus  acknowledged  to  be  an 
important  part  of  our  polity,  it  may  be  said  no 
longer  to  exist  in  England.  It  has  been  men- 
tioned before  that,  should  parliament  pass  a  bill 
from  which  the  ministers  believe  the  royal  assent 
should  be  withheld,  they  would  not,  according  to 
present  usage,  expose  the  king  to  an  open  disagree- 
ment with  the  lords  and  commons,  but  they  would 
resign,  upon  which  an  administration  would  be 
formed  which  would  agree  with  parliament. 

Yet  we  have  received  the  veto  from  England,  and 
it  is  all  these  considerations  which  make  me  hesitate, 
as  I  said  before,  to  call  the  veto  an  Anglican  gua- 
rantee. 

The  use  of  the  veto  can  become  very  galling,  and 
at  such  times  we  often  find  the  party  whose  favorite 
measure  has  been  vetoed  vehemently  attacking 
the  principle  itself.  It  was  thus  the  whigs  in  the 
United  States  earnestly  spoke  and  wrote  against  the 
principle,  when  general  Jackson  declined  givmg  his 
assent  to  some  measures  they  considered  of  great 
importance,  and  the  democrats  were  loud  in  favor 
of  the  veto  power  because  ii  had  been  used  by  a 
president  of  their  own  party. 

A  great  deal  of  confusion  in  treating  this  whole 
subject  has  arisen  from  the  ill-chosen  word  veto,  after 
the  term  used  by  the  Koman  tril)une.  The  veto  of 
the  Roman  tribune  and  the  so-called  modern  veto 
have  nothing  in  common.  The  tribune  could  veto 
VOL.  L — 19 


218  ON  CIVIL  LIBERTY 

indeed.  When  a  law  was  passed  he  could  wholly  or 
partially  stop  its  operation.  The  dispensatory  power 
claimed  by  the  Stuarts  would  have  been  a  real  veto. 
The  chief  of  the  state  in  the  United  States  or  England, 
however,  has  no  such  power.  The  law,  so  soon  as 
it  is  law,  says  to  every  one:  Hands  off.  What  we 
call  the  veto  power,  is  in  reality  a  power  of  an  ab- 
nuent  character,  and  ought  to  have  been  called  the 
declinative.  But  this  declinative  is  possessed  in  a 
much  greater  degree  by  each  house  against  the 
other.  To  make  a  bill  a  law  the  concurrence  of 
three  parties  is  required — that  of  the  tAvo  houses 
and  the  executive,  and  this  concurrence  may  be  with- 
held, otherwise  it  would  not  be  concurrence. 

It  is  a  wise  provision  in  our  constitution  which 
directs  that  a  bill  not  having  received  the  president's 
approval  nevertheless  passes  into  a  law  if  two-thirds 
of  congress  adhere  to  the  bill.  Many  of  our  state 
institutions  do  not  require  the  concurrence  of  the 
executive.  This  is  not  felt  in  many  cases  as  an  evil 
because  the  action  of  the  states  is  limited,  but  in  my 
opinion  it  would  be  an  evil  day  when  the  veto  should 
be  taken  from  the  president  of  the  United  States. 
It  would  be  the  beginning  of  a  state  of  things  such 
as  we  daily  observe  with  our  South  American  neigh- 
bors. The  American  conditional  veto  is  in  a  great 
measure  a  conciliatory  principle  with  us,  as  the 
refusal  of  supplies  is  of  an  eminently  conciliatory 
character  in  the  British  polity. 

The  only  case  in  which  our  executives  have  a  real 
vetitive  power,  is  the  case  of  pardon,  and  most  un- 
fortunately it  is  used  in  an  alarming  degree,  against 


AND  SELF-GOVERXMKNT.  219 

the  supremacy  of  the  hwv  and  the  stability  of  rit^ht 
— both  essential  to  civil  liberty.  I  consider  the 
indiscriminate  pardoning,  so  frequent  in  many  parts 
of  the  United  States,  one  of  the  most  hostile  things, 
now  at  work  in  our  country,  to  a  perfect  govern- 
ment of  law.  In  the  only  case,  therefore,  in  which 
we  have  a  real  veto  power,  Ave  ought  greatly  to 
modify  it.'* 


•*  I  slinll  append  a  paper  an  the  sul.joct  of  pardiming — a  suhjcct 
wliicL  Las  become  all-important  ia  tlio  United  States. 


220  ON  CIVIL  LIBERTY 


CnAPTER    XVIII. 

INDEPENDENCE  OF  THE  JUDICIARY,  THE  LAW, 
JUS,  COJLMON  LAW. 

87.  One  of  the  main  stays  of  civil  liberty,  and 
quite  as  important  as  the  representative  principle,  is 
that  of  which  the  independence  of  the  judiciary 
forms  a  part,  and  which  we  shall  call  the  independ- 
ence or  the  freedom  of  the  law — of  jus  and  justice.* 
It  is  a  great  element  of  civil  liberty  and  part  of  a 
real  government  of  law,  which  in  its  totality  has 
been  developed  by  the  Anglican  tribe  alone.  It  is 
this  portion  of  freemen  oul}'-,  on  the  face  of  the 
earth,  which  enjoys  it  in  its  entirety. 

In  the  present  case  I  do  not  take  the  term  Law  in 
the  sense  in  which  it  was  used  when  we  treated  of  the 
supremacy  of  the  law.  I  apply  it  now  to  everything 
that  may  be  said  to  belong  to  the  wade  department 
of  justice.     I  use  it  in  the  sense  in  which  the  Angli- 


'  The  lack  of  a  proper  word  for  jus,  iii  the  English  language, 
induced  me  to  use  it  ou  a  few  occasions  in  the  Political  Ethics. 
The  Rev.  Dr.  W.  Whcwell  seems  to  have  felt  the  same  want,  and 
uses  it  to  designate  a  whole  division  of  his  work  on  the  Elements  of 
Morality,  including  Polity,  London,  1845,  as  he  also  adopted  the 
•word  Jural  first  used  in  the  Political  Ethics. 


AND  SELF-GOVERNMENT.  221 

can  lawyer  takes  it  when  he  says  that  an  opinion,  or 
(lecisi(jn,  or  act  is  or  is  not  law,  or  good  law — an 
adaptation  of  tlic  word  peculiar  to  the  English  lan- 
guage. It  is  not  tlie  author's  fault  that  Law  must 
be  taken  in  one  and  the  same  essay,  in  which  philo- 
sophical accuracy  may  be  expected,  in  two  difterent 
meanings. 

The  word  Law  has  obtained  this  peculiar  meaning 
in  our  language,  otherwise  so  discriminating  in 
terms  appertaining  to  politics  and  public  matters, 
chiefly  from  two  reasons.  The  first  is  the  serious 
inconvenience,  arising  from  the  fact  that  our  tongue 
has  not  two  terms  for  the  two  very  distinct  ideas 
which  in  Latin  are  designated  by  Lex  and  Jus,  in 
French  by  Lois  and  Droit,  in  German  by  Gesez  and 
Jiecht ;  the  second  is  the  fact,  of  which  every  An- 
glican may  be  proud,  that  the  English  jus  has 
developed  itself  as  an  independent  organism,  and 
continues  to  do  so  with  undiminished  vitality.  It  is 
based  upon  a  conmion  law,  acknowledged  to  be 
above  the  crown  in  England,  and  to  be  the  broad 
basis  of  all  our  own  constitutions — a  body  of  law 
and  "practice,"  in  the  administration  of  justice, 
wliich  has  never  been  deadened  by  the  superinduc- 
tion  of  a  foreign  and  closed  law,  as  was  the  case 
with  the  common  law  of  those  nations  that  roccivod 
the  civil  law  in  a  body  as  authority  for  all  unsettled 
cases.  The  superinduction  of  the  Latin  language 
extinguished  the  living  common  languages  of  many 
tribes,  or  dried  up  the  sources  of  expansive  and 
formative  life  contained  in  them. 

The  independence  of  the  judges  is  a  tmu  hap- 
19* 


222  ON  CIVIL  LIBERTY 

pily  of  old  standing  with  all  political  philosophers 
who  have  written  in  our  language ;  but  it  will  be 
seen  that  the  independence  of  the  judiciary,  by  which 
is  meant  generally  a  position  of  the  judge  independ- 
ent of  the  executive  or  legislative,  and  chiefly,  his 
appointment  for  life  or  immovability  by  the  execu- 
tive, and  frequently,  the  prohibition  of  a  decrease  or 
increase  of  his  salary  after  his  appointment  has  taken 
place — that  this  independence  of  the  judiciary  forms 
but  a  part  of  what  I  have  been  obliged  to  call  the  far 
more  comprehensive  Independence  of  the  Law.^ 

The  independence  of  the  law,  or  the  freedom  of 
jus,  in  the  fullest  and  widest  sense,  requires  a 
living  common  law,  a  clear  division  of  the  judiciary 
from  other  powers,  the  public  accusatorial  process, 
the  independence  of  the  judge,  the  trial  by  jury,  and 
an  independent  position  of  the  advocate.  These  sub- 
jects will  be  treated  in  the  order  in  which  they  have 
been  enumerated  here. 

A  living  common  law  is,  as  has  been  indicated, 
like  a  living  common  language,  like  a  living  com- 
mon architecture,  like  a  living  common  literature. 
It  has  the  principle  of  its  own  organic  vitality,  and 
of  formative  as  well  as  assimilative  expansion  ^vithin 
itself.     It  consists  in  the  customs  and  usatTfes  of  the 


2  When  therefore  I  published  a  small  work  on  this  subject,  during 
Diy  visit  to  Germany,  in  1848,  I  called  it  Die  Unahhiingigkeit  der 
Justiz  oder  die  Freiheit  dcs  Rechts,  Heidelberg,  1848.  Literally 
translated  this  would  be  The  Independence  of  Justice  and  Freedom 
of  the  Law.  Jusliz  in  German,  however,  does  not  mean  the  virtue 
justice,  but  the  administration  of  justice;  and  Recht  means,  in  this 
connection,  jus,  not  a  single  y^s,  but  the  body  of  rights  and  usages, 
laws  and  legal  practice  of  a  people. 


AND  SELF-GOVERNMENT.  223 

people,  the  decisions  which  have  been  made  accord- 
ingly in  the  course  of  administering  justice  itself, 
the  principles  which  reason  demands  and  practice 
applies  to  ever  varying  circumstances,  and  the  ad- 
ministration of  justice  which  has  developed  itself 
gradually  and  steadily.  It  requires,  therefore,  self- 
interpretation  or  interpretation  by  the  judiciary  it- 
self, the  principle  of  the  precedent  and  "practice" 
acknowledged  as  of  an  authoritative  character,  and 
not  merely  winked  at ;  and,  in  general,  it  recjuires 
the  non-interference  of  other  branches  of  the  govern- 
ment or  any  dictating  power.  The  Koman  law  itself 
consisted  of  these  elements  and  was  developed  in 
this  manner  so  long  as  it  was  a  living  thing. 

The  common  law  acknowledges  statute  or  enacted 
law  in  the  broadest  sense,  but  it  retains  its  ovni 
vitality  even  with  reference  to  the  lex  scripta  in 
this,  that  it  decides  by  its  own  organism  au<i  u[)on 
its  own  principles,  on  the  interpretation  of  the  sta- 
tute when  applied  to  concrete  and  complex  cases. 
All  that  is  pronounced  in  human  language  requires 
constant  interpretation,  except  mathematics.'  Even 
if  the  English  law  should  be  codified,  as  at  this 
moment  the  question  of  codification  has  been  brought 
before  parliament,  the  living  common  law  would 
lose  as  little  of  itso^\^l  inherent  vigor  and  expansive- 
ness,  as  it  has  lost  in  Massachusetts  or  New  York  hy 


'  Iletioe  their  own  peculiar  power  ami  tluir  peculiar  narrowncBS. 
I  have  treated  of  this  siihjeot  ami  the  uiueasiiif:  iiecet^sity  of  inter- 
pretation at  the  bcRiiiiiinp;  of  my  rriiiciples  of  Interpretation  nnd 
Coiistnictiiiii  in  Law  and  rolitics,  Boston,  1S;'9. 


224  ON  CIVIL  LIBERTY 

the  "Eevised  Statutes"  of  those  states.  The  differ- 
ence between  such  a  code  in  England  and  the  codes 
which  have  been  promulgated  on  the  continent  of 
Europe,  would  always  consist  in  this,  that  the  Eng- 
lish digest  would  have  a  retrospective  character. 
It  would  be  the  garnering  of  a  crop ;  but  the  living 
orchard  is  expected  to  bear  new  fruits,  while  it  was 
the  pronounced  intention  of  the  promulgators  of  con- 
tinental codices  to  estop  all  interpretation,  for  which 
end  it  was  ordained,  analogously  to  the  rule  of  the 
civil  law,  that  recourse  should  be  had  in  all  doubtful 
cases  to  the  legislator,  that  is  to  the  emperor  or  king, 
or  to  the  ofi&cer  appointed  by  the  monarch  for  that 
purpose.^ 


*  I  cannot  avoid  referring  again  to  my  work  on  ITermoneutics  or 
Principles  of  Interpretation  and  Construction,  wliere  this  subject 
is  repeatedly  treated  of,  as  it  forms  one  of  vital  importance  in  all 
law,  liberty,  politics  and  self-government.  I  have  given  there  in- 
stances of  prohibited  commenting  and  even  lecturing,  in  the  uni- 
versities, on  the  codes.  This  is  the  pervading  spirit  of  the  civil 
law  as  it  was  adopted  by  modern  nations.  It  is  a  necessary  and 
combined  consequence  of  the  principle  contained  in  the  Justinian 
code  itself,  namely,  that  the  emperor  is  the  executive,  legislator  and 
all ;  that,  therefore,  no  self-development  of  the  law,  such  as  had 
indeed  produced  the  Eoman  jus,  could  any  longer  be  allowed;  and 
of  the  fact  that  the  Roman  law  was  adopted  as  a  finished  system 
from  abroad.  The  principle  of  non-interpretation  by  the  courts 
prevails  for  the  same  reasons  in  the  canon  law.  I  give  the  follow- 
ing as  an  interesting  instance. 

The  bull  of  pope  Pius  IV.,  20  January,  15G4,  sanctioning  and 
proclaiming  the  canons  and  decrees  of  the  council  of  Trent,  con- 
tains also  the  prohibition  to  publish  interpretations  and  disserta- 
tions on  these  canons  and  decrees.  The  words  of  the  bull,  which 
correspond  exactly  to  the  authority  rcsei-ved  bj'  government  con- 
cerning the  undei'standing  of  the  law,  where  codes  have  been  intro- 


AND  SELF-GOVERNMENT.  225 

Judge  Story  has  very  clearly  expressed  what  a 
code,  with  reference  to  the  English  law,  ought  to  be. 
He  says:  "Notwithstanding  all  that  is  sai«l  to  the 
contrary,  I  am  a  decided  friend  to  codification,  so  as 
to  fix  in  a  text  the  law  as  it  is,  and  ought  to  be,  as 
far  as  it  has  gone,  and  leave  new  cases  to  furnish  new 
doctrines  as  they  arise  and  reduce  these  again  at  dis- 
tant intervals  into  the  text."* 

Locke  on  the  other  hand  expresses  the  view  which 
is  almost  always  taken  by  philosophers  who  stop 
short  with  theory  and  do  not  add  the  necessary  con- 
siderations of  the  statesman  and  friend  of  practical 
liberty,  when  he  proposed  the  following  passage  in 
the  constitution  he  drew  up  for  South  Carolina: 
"  Since  multiplicity  of  comments  as  well  as  of  laws 
have  great  inconvenience,  and  serve  only  to  obscure 
and  perplex;  all  manner  of  comments  and  exjKjsi- 
tions,  on  any  part  of  these  fundamental  constitutions, 


duced,  and  the  common  law  principle  is  not  acknowledgc<l,  arc 
these : 

"Ad  vitandam  prajtcrca  pcrvcriioiieni  ct  confusioncin,  qux  oriri 
posset,  si  uuicuique  liceret,  prout  ei  liberet,  in  decrcta  Concilii 
commcntarios  et  ioterprctationos  suas  cderc,  Apostolica  auctoritatc 
inliihemus  omnibus — ne  quis  sine  auctoritate  nowtra  audent  ullos 
commcntarios,  glossas,  adniouitioncs,  scholia,  ullumvc  intcrpreta- 
tionis  genus  super  ipsius  Concilii  dccretis,  quocumjuc  modo,  edero, 
aut  quidquiim  (luociimiuc  nomine,  ctiam  sub  i>rn?texta  mnjori.s  dc- 
crctorum  corrobcrationis,  aut  executionis,  aliove  qutcstio  colore, 
statuere." 

Tiie  papal  bull  goes  on  declaring  that  if  there  be  any  obscurity  in 
the  decrees  the  doubter  shall  ascend  to  the  place  whicli  the  Lord 
has  appointed,  viz.  the  apostolic  see,  and  that  the  pope  will  solve 
the  doubts. 

*  Life  and  Letters  of  Judge  Story,  vol.  i.  p.  l-iy. 


226  ON  CIVIL  LIBERTY 

or  on  any  part  of  tlie  common  or  statute  laws  of 
Carolina,  are  absolutely  prohibited.''^ 

This  is  quite  as  strong  as  the  Bavarian  code  or  the 
pope's  decree,  mentioned  in  a  previous  note.  The 
fact  is  simply  this :  on  the  one  hand  analyzing  and 
systematizing  is  one  of  the  very  parts  of  humanity, 
and  development,  growth,  assimilation  and  adapta- 
tion are  the  very  elements  of  life.  Man  has  to  lay 
out  his  road  between  the  two,  and  of  course  will 
incline  more  to  the  one  or  tlie  other  according  to 
the  bias  of  his  mind  or  the  general  course  of  reason- 
ing common  to  his  peculiar  science  or  profession.    " 

If  interpretation,  which  takes  place  when  the 
general  rule  is  applied  to  a  concrete  case,  is  not  left 
to  the  law  itself,  the  law  ceases  to  have  its  own  life, 
and  the  citizen  ceases  strictly  to  live  under  the  law. 
He  lives  under  the  dictating  or  interfering  power, 
because  each  practical  case,  that  is  each  time  that 
the  rule  passes  over  from  an  abstraction  into  a  real- 
ity, is  subject  to  that  power,  be  it,  as  it  generally  is, 
the  executive,  or  the  legislative.  This  does  not 
exclude  what  is  called  authentic  interpretation,  or 
interpretation  by  the  legislature  itself,  for  future 
cases.  Accurately  speaking,  authentic  interpretation 
is  no  interpretation,  but  rather  additional  legislation. 
We  would  distinctly  exclude,  however,  retrospective 
authentic  interpretation;  for  this  amounts,  indeed,  to 
an  application  of  the  law  by  the  legislature,  and  is 
incompatible  with  a  true  government  of  law.  .  It  is 
obvious  that  the  same  holds  with  reference  to  all 


^  Locke's  Coastitutiou  for  South  Carolina,  1GG9,  paragraph  80. 


AND  SELF-GOVERNMEXT.  227 

power,  whether  monarchical  or  popular.  The  law 
must  be  the  lord  and  our  "  earthly  god,"  and  not  a 
man,  a  set  of  men,  or  the  multitude. 

As  to  the  principle  of  the  precedent,  it  is  one  of 
the  elements  of  all  development,  contradistinguished 
to  dictation  and  mere  command.  Everything  that 
is  a  progressive  continuum  requires  the  precedent. 
A  precedent  in  law  is  an  ascertained  princijile  ap- 
plied to  a  new  class  of  cases,  which  in  tlie  variety 
of  practical  life  has  offered  itself.  It  rests  on  law 
and  reason,  which  is  law  itself.  It  is  not  absolute. 
It  does  not  possess  binding  power  merely  as  a  fact, 
or  as  an  occurrence.  If  that  were  the  case,  Anaxi- 
mander  would  have  been  right  when  he  said  that 
Themis  was  standing  by  the  throne  of  Alexander  to 
stamp  with  right  and  justice  whatever  he  did.  Nor 
is  it  unchangeable.  A  precedent  can  be  overruled. 
But  again,  it  must  be  done  by  the  law  itself,  and 
that  which  upsets  the  precedent  cannot  otherwi.sc 
than  become,  in  the  independent  life  of  the  law, 
precedent  in  turn.^ 

The  continental  lawyers  have  a  great  fear  of  the 
precedent,  but  they  forget  that  their  almost  wor- 
shipped Roman  law  itself  was  built  up  by  precedent. 
Indeed  they  do  not  comprehend  the  nature  of  the 
precedent,  its  origin  and  its  })owcr,  as  an  element  of 


^  Dr.  Grcenlcaf  published,  in  Poi-tland,  Maine,  18lil,  A  (nllec- 
tion  of  Cases  overruled,  doubted,  or  liiniteil  in  their  .Vpj>iieatt(»n, 
taken  from  American  and  Engli.sh  Reports.  Several  jsub.xeiiueiit 
etlitions  have  been  j)ublislicd,  with  udditi<in.«.  for  which  Dr.  Green- 
leaf  however  has  declared  him.^elf  irresponsible. 


228  ON  CIVIL  LIBERTY 

a  free  jus.  They  frequently  point  to  the  fact  that 
the  most  tyrannical  acts  of  the  Stuarts  were  founded 
upon  real  or  presumed  precedents,  and  that  crown 
lawyers  helped  in  the  nefarious  work ;  but  they  for- 
get that  British  liberty  was  also  rescued  from  des- 
potism in  a  great  measure  by  lawyers  footing  on  the 
common  law.  Nothing  gave  to  the  popular  party 
more  strength  than  the  precedent.  On  this  par- 
ticular subject,  and  on  the  nature  of  the  precedent 
and  the  distinction  of  the  legal  from  the  executive 
precedent,  as  well  as  the  eminent  danger  of  regard- 
ing a  mere  fact  as  a  precedent,  I  have  fully  treated 
in  two  other  works.^  The  present  work  does  not 
permit  me  to  enter  more  fully  on  the  subject,  or  to 
repeat  what  I  have  there  said.  A  truth  of  the 
weightiest  importance  it  remains,  that  liberty  and 
steady  progression  require  the  principle  of  the  pre- 
cedent in  all  spheres.  It  is  one  of  the  roots  with 
which  the  tree  of  liberty  fastens  in  the  soil  of  real 
life,  and  through  which  it  receives  the  sap  of  fresh 
existence.  It  is  the  weapon  by  which  interference 
is  warded  off.  The  principle  of  the  precedent  is 
eminently  philosophical. 

Every  great  idea  has  its  caricature,  and  the  more 
unfailingly  so,  the  more  actively  and  practically  the 
idea  is  working  in  real  life.  It  is,  therefore,  natural 
that  we  should  meet  with  caricatures  of  the  prece- 
dent especially  in  England,  as  the  English  have  been 
obliged  to  build  up  slowly  and  gradually  that  system 


^  In  my  Ethics,  and  especially  iu  my  Principles  of  Legal  and 
Political  Interpretation  and  Construction. 


AND  SELF  GOVERNMEXT.  229 

of  liberty  and  the  independence  of  the  law,  which  we 
have  carried  over  to  this  country  in  a  body,  and 
which  we  have  farther  developed.  When  we  read 
that  at  every  opening  of  a  new  parliament  a  com- 
mittee of  the  commons  proceeds — lantern  in  hand — 
to  the  cellar  under  the  house,  to  see  no  modern  Guy 
Fawkes  has  collected  combustibles  there  for  the 
purpose  of  exploding  parliament,  because  the  thing 
had  been  done  under  James  the  First,  we  must  ac- 
knowledge the  procedure  more  pitiful,  though  far 
more  innocent,  than  Alexander's  dragging  the  body 
of  the  gallant  Betis  at  the  wheels  of  his  chariot 
round  the  walls  of  Gaza,  in  order  to  follow  the 
precedent  of  his  progenitor  Achilles.  But  this  is 
caricature,  and  it  is  unphilosophical  to  jioiiit  at  the 
case,  in  order  to  prove  the  futility  or  mischief  of 
the  precedent.  It  is  a  proper  subject  for  Punch  to 
exterminate  such  farces,  n(jt  for  us  to  discu.';.'^  them, 
any  more  than  seriously  treating  the  French  })ub- 
licist  who,  speaking  of  the  intrigues  of  the  legiti- 
mists, lately  said  that  the  elder  Bourbons  should 
remember  that  Louis  Napoleon  had  created  for  him- 
self a  formidable  precedent,  in  the  spoliation  of  the 
Orleans  branch.  Nero's  fiddle  might  at  this  rate 
legalize  the  sentimental  l)urning  of  any  capital. 

The  precedent  has  been  called  judge-made  law, 
and  as  such  deprecated.  A  more  correct  term  would 
be  court-evolved  law.  If  the  precedent  is  bad,  let 
it  be  overrule<l  by  all  means,  or  let  the  legisUiture 
regulate  the  matter  by  statute.  Bacon's  dictum, 
already  quoted,  that  the  worst  of  things  is  tiie  apo- 
theosis of  error,  applies  Id  the  b;id  precedent  a» 
VOL.  L— 20 


230  ON  CIVIL  LIBERTY 

forcibly  as  to  any  other  error,  but  the  difficulty  is  not 
avoided  by  simply  disavowing  the  precedent.  Some 
one  must  decide.  Now  is  it  better  that  government 
or  a  "minister  of  justice"  shall  lay  down  a  rule  in 
the  style  of  the  civil  law,  or  that  the  principle  shall 
be  decided  in  court  by  the  whole  organism  esta- 
blished to  give  reality  and  practical  life  to  justice, 
and  in  the  natural  course  of  things? 

Continental  jurists,  when  they  compare  the  civil 
law  with  the  common  law,  always  commit  this 
error,  that  they  merely  compare  the  contents  of 
the  two  great  systems  of  law  on  which  I  shall  pre- 
sently say  a  few  words;  whilst  they  invariably  for- 
get to  add  to  the  comparison  this  difference,  that 
the  civil  law,  where  it  now  exists,  has  been  intro- 
duced as  a  dead  and  foreign  law ;  it  is  a  matter 
of  learned  study,  of  antiquity;  while  common  law 
is  a  living,  vigorous  law  of  a  living  people.  It  is 
this  that  constitutes  more  than  half  its  excellence; 
and  though  we  should  have  brought  from  England 
all  else,  our  liberty,  had  we  adopted  the  civil  law, 
would  have  had  a  very  precarious  existence.  Judge 
Story  relates,  "as  perfectly  well  authenticated,  that 
president  (John)  Adams,  when  he  was  vice-president 
of  the  United  States,  and  Blount's  conspiracy  was 
before  the  senate,  and  the  question  whether  the  com- 
mon law  was  to  be  adopted  was  discussed  before  that 
body,  emphatically  exclaimed,  when  all  looked  at 
him  for  his  opinion  as  that  of  a  great  lawyer,  that  if 
he  had  ever  imagined  that  the  common  law  had  not 
by  the  revolution  become  the  law  of  the  United 
States  under  the  new  government,  he  never  would 


AND  SELF-GOVERNMENT.  231 

have  drawn  his  sword  in  the  contest.  So  dear  to  him 
were  the  great  privileges  which  that  law  recognized 
and  enforced."^ 

The  civil  law  excels  the  common  law  in  some 
points.  AVherc  the  relations  of  property  are  con- 
cerned, it  reasons  clearly  and  its  language  is  admi- 
rable, but  as  to  personal  rights,  the  freedom  of  the 
citizen,  the  trial,  the  independence  of  the  law,  the 
principles  of  self-government,  and  the  supremacy  of 
the  law,  the  common  law  is  incomparably  superior.** 

Nor  has  the  civil  law  remained  without  its  influ- 
ence, but  it  never  superseded  the  common  law.  The 
common  law  remained  a  living  system,  and  it  assimi- 
lated to  itself  parts  of  the  civil  law  as  it  assimilates 
any  other  thing.  For  instance,  judge  Story,  in  one 
of  his  essays,  says :  The  doctrine  of  bailments,  too, 
was  almost  struck  out  at  a  single  beat  by  lord  Holt," 
who  had  the  good  sense  to  incorporate  into  the  Kng- 
lish  code  that  system  which  the  text  and  the  com- 
mentaries of  the  civil  law  had  already  built  uj*  on 
the  continent  of  Europe." 


9  Page  2'.)9,  vol.  i.  Life  and  Letters  of  Joseph  Story. 

'"  Tlie  civil  law,  a  law  of  wisdom  but  of  servitude ;  the  hiw  of  n 
great  commercial  empire,  digested  in  the  days  of  Justiitian,  and 
containing  nil  the  princii)les  of  justice  and  C(|uity  suited  to  llie  rela- 
tions of  men  in  society  with  eacii  other;  hut  a  law  under  wliicli  tlic 
head  of  government  was  "  Impcrator  Augustus,  Icgibus  solutus." — 
John  Quihcy  Adams,  seveiitli  j>resident  of  tiie  Tuited  Slates,  in  n 
letter  to  Judge  Story,  page  UO,  vol.  ii.  Life  and  Letters  of  .luclge 
Story. 

"  The  case  of  C'oggs  v.  liernard,  2  ed.  Raym.  11.  WJ— note  hy 
judge  Story. 

'^  Story's  Miscellaneous  Writings,  p.  li"_'L 


232  ON  CIVIL  LIBERTY 

Tlie  common  law  is  all  the  time  expanding  and 
improving.  I  have  given  a  very  interesting  instance 
of  this  fact,  in  the  law  of  whalers,  which  has  de- 
veloped itself  among  the  hardy  hunters  of  the  Paci- 
fic," and  has  been  acknowledged,  when  the  proper 
occasion  offered  itself,  in  the  courts  of  Massa- 
chusetts.'* 


'"  In  a  similar,  though  in  a  far  less  interesting  way,  I  observe 
that  a  whole  code  has  established  itself  for  the  extensive  sale  of 
books  at  auction  in  London.  It  is  a  real  specimen  of  the  genius  of 
one  part  of  common  law. 

'■*  See  Article  Common  Law,  in  the  Encyclopa3dia  Americana.  It 
was  written,  as  many  others  on  subjects  of  law,  by  my  lamented 
friend,  judge  Story.  An  opportunity  has  never  offered  itself  to 
me  publicly  to  acknowledge  the  great  obligation  under  which  I  am 
to  that  distinguished  jurist,  for  the  assistance  he  most  readily  and 
cheerfully  gave  me  in  editing  the  Americana.  I  shall  never  forget 
the  offer  he  made  to  contribute  some  articles  when  I  complained  of 
my  embarrassment  as  to  getting  proper  articles  on  the  main  sub- 
jects of  law,  for  my  work  intended  for  the  general  reader.  Many 
of  them  were  sent  from  Washington,  while  he  was  fully  occupied 
with  the  important  business  of  the  supreme  court.  He  himself 
made  out  the  list  of  articles  to  be  contributed  by  him,  and  I  do  not 
remember  ever  having  been  obliged  to  wait  for  one.  The  only  con- 
dition this  kind-hearted  man  made  was  that  I  should  not  publish 
the  fact  that  he  had  contributed  the  articles  in  the  work  until  some 
period  subsequent  to  their  appearance.  They  have  met  with  much 
approbation,  and  I  hope  I  am  not  guilty  of  indiscretion,  if  I  state 
here  that  another  friend,  a  distinguished  orator  and  lawj'cr,  the 
Hon.  William  C.  Preston,  has  repeatedly  expressed  his  admiration 
of  them. 

The  contributions  of  judge  Story  to  the  Americana  "comprise 
more  than  120  pages,  closely  printed  in  double  columns.  But  a 
higher  interest  than  that  growing  out  of  their  intrinsic  worth 
belongs  to  them.  They  were  labors  dedicated  purely  to  friendship, 
and  illustrate  a  generosity  which  is  as  beautiful  as  it  is  rare."  To 
these  words,  copied  from  p.  27,  vol.   ii.  of  Life  and  Letters  of 


AND  SELF-GOVERNMENT.  233 

Joseph  Story,  where  a  list  of  all  his  contributions  may  be  found,  I 
may  add  that  judge  Story  made  Lis  offer  at  a  time  wbcn  he  to 
whom  it  was  made  was  known  to  very  few  persons  in  this  country, 
and  had  but  lately  arrived  here ;  and  that  he  took  at  once  the 
liveliest  and  most  active  interest  in  the  whole  enterprise,  and  con- 
tributed much  to  cheer  on  the  stranger  in  his  arduous  tusk.  1  may 
be  permitted  to  add  that  the  friendship  then  commenced  steadily 
grew  until  death  removed  the  excellent  man. 


20* 


234  ON  CIVITi  LIBERTY 


CHAPTER    XIX. 

INDEPENDENCE  OF  JUS,  SELF-DEVELOPMENT  OF  LAW 
CONTINUED.  ACCUSATOPvIAL  AND  INQUISITORIAL 
TRIALS.     INDEPENDENCE  OF  THE  JUDGE. 

38,  The  practice  or  usage  of  tlie  administration  of 
justice  belongs  of  right  to  the  development  of  that 
administration  itself,  avowedly  so,  and  not  merely 
by  connivance.' 

In  countries  in  which  this  important  principle  is 
not  acknowledged,  certain  changes,  produced  by 
"practice,"  were  and  are,  nevertheless,  winked  at, 
and  happily  so,  because  legislation  has  neglected  to 
make  the  necessary  changes,  and  humanity  will  not 
be  outraged.  Thus,  in  German  countries,  practice 
had  abolished  the  application  of  the  torture  and 
fearful  punishments,  demanded  by  positive  law,  long 
before  they  were  abolished  by  law\  But  it  was  an 
exception  only  demanded  by  common  sense  and  by 
a  general  feeling  of  humanity. 


'  Lord  Mansfield,  in  a  note  to  a  Scottish  judge,  who  had  asked 
his  advice  as  to  the  introduction  of  trial  by  jury  in  civil  cases  into 
Scotland,  has  this  remark:  "  Great  alterations  in  the  course  of  the 
administration  of  justice  ought  to  be  sparingly  made  and  by  degrees, 
and  rather  by  the  court  than  by  the  legislature."  Lorf  Campbell's 
Ch.  Justices  of  England,  vol.  ii.  p.  554. 


AXD  SELF-GOVERNMENT.  235 

The  common  law  of  the  Anglican  tribe,  however, 
assigns  the  right  of  development  to  the  courts.  It 
is  part  and  parcel  of  the  common  law.  Innumerable 
instances  and  of  almost  daily  occurrence  might  be 
given. 

The  following  instance  is  given  here  simply  be- 
cause the  writer  happens  to  think  first  of  it,  and 
because  it  seems  to  be  an  apt  illustration. 

When  a  court  is  directed  to  sit  two  weeks,  and 
a  jury,  being  summoned  to  act  for  the  first  week  of 
the  term,  and  having  retired  to  consider  of  their 
verdict  before  midnight  of  Saturday,  in  the  first 
week,  return  into  court  after  midnight,  and  before 
daylight  of  Sunday ;  shall  or  shall  not  their  verdict 
be  received  and  published  ?  Shall  it  be  rejected  on 
the  ground  that  Sunday  is  a  dies  nonjuridicas  ?  This 
question  was  lately  decided  in  South  Carolina,  not 
by  applying  for  information  to  a  "  minister  of  justice," 
or  "the  emperor,"  as  the  civil  law  directs,  but  by 
itself,  upon  the  principle  of  vital  self-sufficiency,  by 
inquiry  into  its  o\vn  principles,  and  an  examination 
of  precedents  in  the  whole  range  of  English  law,  and 
of  statute  laws,  if  there  were  any  exactly  api)lyiug 
to  the  case  under  consideration.'^ 


*  The  learned  "opinion"  of  the  court  of  errors  was  dclivcrcil  by 
jiulge  Wardlaw,  Ilillcr  v.  Englisli,  4  Strokhart's  Reports,  Columbin, 
S.  C.  1850.  AVIiilc  I  was  writing  tliis,  the  supremo  court  of  Mas- 
sachusetts decided  that  tlie  '"squeeze  of  tiie  hand"  of  n  dying  per- 
son, unable  to  speak,  but  having  been  ina<Ie  aware  of  the  fact  tliut 
the  pressure  would  bo  taken  as  an  anirinalivc,  may  be  takt-n  as 
"a  dying  declaration,"  tliough  witli  caution. — National  Inti>lli- 
genccr,  Washington,  May  21,  IHoo. 


236  ON  CIVIL  LIBERTY 

This  principle  of  self-development  is  important 
likewise  "witli  reference  to  a  clear  division  of  tlic 
judiciary  from  otlier  branches  of  the  public  power. 
The  law  is  not  independent,  and  consequently  the 
citizen  not  free,  where  aught  else  than  the  adminis- 
tration of  justice  belongs  to  the  court,  and  where 
anything  that  belongs  to  the  administration  of  justice 
is  decided  by  any  one  but  the  courts  ;  Avhere  things 
are  decided  by  aught  else  than  the  natural  course  of 
law,  and  where,  as  has  been  stated,  interpretation  or 
application  belongs  to  any  one  else  than  to  the  judi- 
ciary.^ Hence  there  ought  to  be  no  pressure  from 
without,  either  by  a  Stuart  sending  for  the  judges  to 
tamper  with  them,  or  to  ask  them  how  they  would 
decide  a  certain  case  if  brought  before  them,  or  by  a 
multitude  assuming  the  name  of  the  people.  No  judge 
ought  to  give  his  opinion  before  the  practical  case  has 
come  on  and  been  discussed  according  to  law,  either 
to  monarch,  political  party,  or  suitor.  He  is  an  inte- 
gral part  of  the  Law,  but  only  a  part,  which  must 
not  be  disconnected  from  the  Law.  There  must  not 
be  what  are  called  in  'Evince  jugements  adrmmstrati/s, 
nor  any  extraordinary  or  exceptional  courts,  as  has 
been  mentioned ;  no  judgments  by  extraordinary  com- 


3  Even  the  Constitution  of  the  French  Republic  of  1848  sai>l, 
article  89 : 

"  Conflicts  of  privileges  and  duties  between  the  administrative 
and  judicial  authority  shall  be  regulated  by  a  special  tribunal  com- 
posed of  members  of  the  court  of  cassation  and  of  counsellors  of 
state,  to  be  appointed,  every  three  years,  in  equal  number,  by  the 
respective  bodies  to  -which  they  belong.  This  tribunal  shall  be 
presided  over  by  the  minister  of  justice." 


AND  SELF-GOVERNMENT.  237 

missions,  nor  any  decisions  In-  tlic  executive  about 
the  application  of  tlic  law.  The  following  instance  is 
here  given,  not  because  the  case  is  of  itself  important, 
but  because  it  exhibits  the  principle  with  perfect  clear- 
ness, and  because  it  refers  to  a  royal  proclamation — 
an  executive  act.  The  Eno-lish  government  had 
published  in  Ibo'i  a  proclamation  against  the  public 
appearance  of  Roman  catholics  in  their  religious 
vestments;  and  the  well-known  father  Newman 
asked  the  secretary  for  the  home  dej)artment  whether 
this  royal  proclamation  must  be  considered  as  directed 
also  against  the  appearing  in  "cassocks  and  cloaks" 
in  the  streets  of  Birmingham,  where  the  Roman  c;itho- 
lics  had  thus  been  in  the  habit  of  appearing  "  under 
legal  advice"  for  full  four  years.  The  answer  of  secre- 
tary Walpole,  one  of  the  ministers,  was  this : 

"  I  am  to  inform  you,  that  her  majesty's  proclama- 
tion is  directed  against  all  violations  of  the  2»3th  sec- 
tion of  the  statute  10th  George  IV.  c.  7,  and  that  if 
you  feel  any  difhculty  in  the  construction  of  the 
enactment,  your  proper  course  will  be  to  consult  your 
legal  adviser.  The  secretary  of  state  would  not  be 
justified  in  pronouncing  an  opinion  on  the  question 
submitted  to  him ;  for  if  any  doubt  exists  on  tlic 
point,  the  decision  of  it  must  rest  with  the  courts  of 
law,  and  not  with  the  government.""* 

There  is  no  country  except  ours  and  I'liigland 
where  a  similar  answer  would,  or  indeed  could,  have 
been  given.     Everywhere  else  it  would  have  l)ccn 


*  The  letter  is  dnted  June  24,  IbO'i.     Lonilon  .Siicctntor,  .Tuly  3, 
1852. 


238  ON  CIVIL  LIBERTY 

called  a  destruction  of  the  principle  of  unity  in  tlic  go- 
vernment. We  call  it  a  small  but  choice  cabinet  speci- 
men of  a  most  noble  principle,  forming  an  element  of 
our  very  polities.  Nor  must  it  be  forgotten  that  it 
was  a  tory  government  which  made  this  exclusively 
Anglican  reply.  The  reader  will  remember  the 
directly  opposite  principle  declared  in  the  bull  of 
pope  Pius  IV.,  quoted  before,  as  Avell  as  Locke's  pro- 
vision in  his  constitution  for  South  Carolina. 

39.  The  public  accusatorial  trial  is  another  element 
of  the  independence  of  the  Law,  as  it  is  one  of  the 
efficient  protections  of  the  citizen.  By  accusatorial 
process  is  understood  here,  not  what  is  generally 
understood  by  the  term  of  trial  by  accusation  (that 
is,  individual  accusation),*  but  that  penal  trial  which 
places  the  court  wholly  above  the  two  parties  in 
criminal  matters,  as  the  judge  is  everywhere  jDlaced, 
at  least  theoretically  so,  in  civil  cases ;  although  the 
two  parties  be  the  prosecuting  state  or  government 
on  the  one  hand,  and  the  indicted  person  on  the 
other.  The  accusatorial  trial  is  thus  contradistin- 
guished from  the  inquisitorial  trial,  which  came  into 
use  through  the  canon  law,  and  especially  through 
the  unhallowed  witch  trials.  In  it,  the  judge  inquires, 
investigates,  in  one  word,  is  the  prosecuting  party  as 
well  as  the  judging,  and  in  some  cases  he  is  even 
expected  to  be  likewise  the  protecting  party  of  the 
indicted  prisoner,  thus  uniting  a  triad  of  functions 


6  There  was  no  public  prosecutor  in  Rome.  Au  iniliyiJual  ap- 
peared as  accuser,  and  formed  throughout  the  trial  the  prosecuting 
party.     See  article  Criminal  Law,  in  the  Encyclop.  Amcric. 


AND  SELF-GOVERNMENT.  289 

Avitliiu  liimself  which  amounts  to  a  psychological  in- 
congruity." 

It  may  be  said  that  the  public  accusatorial  trial 
has  prevailed  or  been  aimed  at  by  all  free  nations, 
modern  and  ancient.  We,  the  English,  the  Nether- 
landers,  the  Norwegians,  the  Swedes,  the  French, 
since  the  first  revolution,^  the  Germans,  in  the  earlier 
times  the  Greeks  and  llomans — all  have  or  had 
it,  but  it  has  nowhere  been  carried  out  with  that 
consistency  which  we  find  in  the  Anglican  penal 
trial. 

The  penal  trial  or  ])rocedure  is  quite  as  important 
as  the  criminal  law  itself,  and  with  reference  to  })ro- 
tcction,  to  liberty,  to  a  pervading  consciousness  of 
manly  rights,  it  is  even  more  so.  This  is  the  chief 
reason  which  explains  wliy  the  English,  the  freest 
nation  of  Europe,  endured  so  long  one  of  the  worst 
and  most  unphilosophical  body  of  criminal  laws — 
so  sanguinary  in  its  character  that  the  monstrosity 
came  to  pass,  of  calling  all  punishments  not  capital, 
secondary  punishments,  as  if  death  were  the  current 
jicnal  coin,  and  the  rest  of  i)unishments  merely  the 
coj)per  to  make  small  "change."  The  English  pub- 
lic accusatorial  j)rocess,  since  the  expulsi(^n  of  the 
Stuarts,  contained  great  guarantees  of  public  security, 
even  while  those  deficiencies  yet  existed  which  have 


^  See  Fcuerbacli  <m  llio  .Tniy. 

^  Under  tlie  present  al'sohitisni,  tlie  trial  is  of  ci>uri-c  lit  the 
mercy  of  the  executive,  if  tiie  government  lias  any  intercut  in  tlie 
matter;  that  is,  jmniMlimentfs  are  inliicte<l  witliont  trial,  ami  certain 
oflences  are  punislieil  summarily,  aUlmugh  jainislieil  with  severe 
visitation  of  the  law. 


240  ON  CIVIL  LIBERTY 

been  remedied  of  late,  tlianks  to  sir  Samuel  Romilly 
and  sir  Robert  Peel. 

We  consider  tliat  the  accusatorial  procedure,  car- 
ried out  witli  consistency  and  good  faith,  requires  that 
the  accusation  itself  be  not  made  by  the  executive, 
but  ui)on  information,  by  whomsoever  made,  through 
an  act,  which  itself  includes  a  guarantee  against 
frivolous  or  oppressive  accusation ;  for,  as  has  been 
stated,  trial  itself,  though  followed  by  acquittal,  is  a 
hardship.  Hence  the  importance  of  a  grand  jury, 
and  the  constitution  of  the  United  States  ordains 
that  "  no  person  shall  be  held  to  answer  for  a  capital 
or  otherwise  infamous  crime  unless  on  a  presentment 
or  indictment  of  a  grand  jury."  The  French  penal 
trial  contains  no  such  guarantee.  It  has  passed  over 
into  the  fundamental  laws  of  all  our  states.  It  is 
further  necessary  that  the  whole  trial  be  bona  fide 
public  and  remain  bona  fide  accusatorial.  Hence  no 
secret  examinations  of  the  prisoner  by  the  public 
prosecutor  before  the  trial,  the  results  of  which  are 
to  be  used  at  the  trial,  ought  to  take  place,  as  this 
actually  forms  part  of  the  French  penal  trial.  On  the 
other  hand,  the  judge  should  remain,  during  the  trial, 
mere  judge,  and  never  become  inquirer  or  part  of 
the  prosecution,  as  this  is  likewise  the  case  in  France. 
Nor  must  the  prisoner  be  asked  to  incriminate  him- 
self. All  this  belongs  to  the  inquisitorial  trial.  The 
indictment  must  be  clear,  and  the  prosecuting  officer 
must  not  state  his  whole  case  before  the  witnesses 
are  examined,  nor  be  allowed  to  bring  in  irrelevant 
matter.  Lastly,  full  scope  must  be  given  to  counsel 
for  prisoner.     In  all  these  details  most  of  the  accusa- 


AND  SELF-GOVERNMENT.  241 

torial  trials  except  the  Anglican  arc  more  or  less, 
and  some  sadly  deficient. 

40.  The  independence  of  the  law  or  administra- 
tion of  justice  requires  the  independence  of  the 
judge.  All  the  guarantees  we  have  mentioned  sup- 
port the  judge  in  his  independence,  and  are  requisite 
for  it.  He  cannot  be  so  without  a  distinct  separa- 
tion of  the  judiciary  from  the  other  branches  of  the 
government,  without  a  living  self-sustaining  jus,  or 
without  the  accusatorial  procedure.  But  more  is 
necessary. 

The  appointment,  the  duration  in  olTicc  and  the 
removal  must  be  so  that  the  judge  feels  no  depend- 
ence upon  any  one  or  anything,  except  the  law 
itself.  This  ought  to  be  the  case  at  least  in  as  high  a 
degree  as  it  is  possible  for  human  wisdom  to  make 
it,  or  for  human  frailty  to  carry  out.*  Where  there 
is  a  pervading  publicity  in  the  political  life,  an  inde- 
pendent bar  and  self-sustaining  jus  and  administra- 
tion of  justice,  with  responsible  ministers  of  the  ex- 
ecutive or  a  responsible  chief  magistrate,  carefully 
limited  in  his  power,  there  is  probably  as  little  dan- 
ger of  having  bad  judges,  in  giving  the  appointing 
power  to  the  executive,  especially  if,  as  is  the  case 
with  us,  the  senate  must  confirm  the  a])pointmcnt,  as 
in  any  other  mode  of  appointing — indeed,  far  less 
danger  than  in  those  other  modes  which  so  far  have 
been  adopted  in  many  of  our  states.  Where  pecu- 
liar fitness,  peculiar  skill  and  learning  and  peculiar 
aptitude  are  requisite,  it  is  for  many  psychological 


'  See  Federalist,  No.  Ixxviii.  and  sequ. 
VOL.  I.— 21 


242  ON  CIVIL  LIBERTY 

reasons  the  best  to  throw  the  responsibility  of  ap- 
pointing on  a  few  or  one,  so  that  it  be  concentrated, 
provided  these  few  or  the  one  are  made  to  feel  by  a 
proper  organization  that  they  are  responsible  to  the 
public.  It  is  unmse  to  give  such  appointments  to 
irresponsible  bodies,  or  to  numerous  bodies,  which, 
according  to  the  universal  deception  of  a  divided 
responsibility,  are  not  apt  to  feel  the  requisite  pres- 
sure of  responsibility,  and  necessarily  must  act  by 
groups  or  parties. 

Laws  ought  to  be  the  result  of  mutually  modifying 
compromise;  many  appointments  ought  not.  Elec- 
tion in  such  cases,  by  a  large  body,  would  lead  to  few 
efficient  and  truly  serviceable  ambassadors,  and  it 
has  long  been  settled  by  that  nation,  which  probably 
knows  most  about  the  most  efficient  appointment  of 
university  professors,  the  Germans,  that  their  ap- 
pointment by  election,  either  by  a  numerous  corpora- 
tion or  by  the  professors  of  a  university  themselves, 
is  to  be  discarded.^ 

These  remarks  apply  to  the  appointment  of  judges 
by  legislatures.  As  to  the  election  of  judges  by  the 
people  themselves,  which  has  now  been  established 
in  many  of  the  United  States,  it  is  founded,  in  my 
opinion,  on  a  radical  error — the  confusion  of  mistak- 
ing popular  power  alone  for  liberty,  and  the  idea 
that  the  more  the  one  is  increased,  in  so  much  a 
higher  degree  will  the  other  be  enjoyed.     As  if  all 


3  The  remarks  of  that  wise  philosopher,  sir  William  Hamilton, 
on  the  election  of  professors,  in  his  minor  works,  apply,  so  far  as  I 
remember  them  now,  with  equal  force,  and  probably  with  greater 
strength,  to  the  election  of  judges. 


AND  SELF-GOVERNMENT.  243 

power,  no  matter  what  name  be  given  to  it,  if  it 
sways  as  power  alone,  wore  not  absolutism,  and  had 
not  the  inherent  tendency,  natural  to  all  power,  to 
increase  in  absorbing  strength  I  All  despotic  gov- 
ernments, Avhether  the  absolutism  rests  with  an  indi- 
vidual or  the  people  (meaning  of  course  tlie  mnjoritv), 
strive  to  make  the  judiciary  dependent  upon  them- 
selves. Louis  the  Fourteenth  did  it,  and  every  abso- 
lute democracy  has  done  it.  All  essential,  jiractical 
liberty,  like  all  sterling  law  itself,  loves  the  light  of 
common  sense  and  plain  experience.  All  absolutism, 
if  indeed  we  except  the  mere  brutal  despotism  of  the 
sword,  which  despises  every  question  of  right,  loves 
mysticism — the  mysticism  of  some  divine  riglit. 
The  monarchical  absolutists  do  it,  and  the  popular 
absolutists  do  the  same.  But  there  is  no  mystery 
about  the  word  People.  People  means  an  aggregate 
of  individuals  to  each  of  whom  we  deny  any  divine 
right,  and  to  each  of  whom, — I,  you,  and  every  one 
included, — we  justly  ascribe  frailties,  failings,  and  the 
possibility  of  subordinating  judgment  and  virtue  to 
passion  and  vice.  Each  one  of  them  separately 
stands  in  need  of  moderating  and  protecting  laws 
and  constitutions,  and  all  of  them  unitedly  as  much 
so.  "Where  the  people  are  the  first  and  chiefest 
source  of  all  power,  as  is  the  case  with  us,  the  elect- 
ing of  judges,  and  especially  their  election  for  a 
limited  time,  is  nothing  less  than  an  inva.sion  of  the 
necessary  division  of  power,  and  a  bringing  of  tlic 
judiciary  within  the  influence  of  the  power-holder. 
It  is  therefore  a  diminution  of  liberty,  for  it  is  of 
the  last  importance  to  place  the  judge  between  the 


244  ON  CIVIL  LIBERTY 

chief  power  and  the  party,  and  to  protect  him  as  the 
independent,  not  the  absolute,  organ  of  the  law. 

Those  of  our  states,  which  have  of  late  given  the 
appointment  of  judges  to  popular  elections,  labor 
under  a  surprising  inconsistency ;  for  all  those  states, 
I  believe,  exclude  judges  from  the  legislature.  They 
fear  "political  judges,"  yet  make  them  elective. 
Now,  everything  electional  within  the  state  is  neces- 
sarily political.  If  the  physician  of  a  hospital,  the 
captain  of  a  vessel,  or  the  watchmaker  to  repair  our 
timepieces,  were  elective  by  the  people,  they  woiQd, 
to  a  certainty,  in  most  cases,  be  elected,  not  according 
to  their  medical,  nautical,  or  horological  skill  and 
trustworthiness,  but  on  political  grounds.  There  is 
nothing  reproachful  in  this,  to  the  people  at  large. 
It  is  the  natural  course  of  things.  Even  the  mem- 
bers of  the  French  Academy  have  been  elected  on 
political  grounds,  when  the  government  took  a  deep 
interest  in  the  election. 

The  question  whether  judges  ought  to  sit  in  the 
house  of  commons  was  recently  before  parliament.'" 
There  are  many  English  authorities  on  the  American 
side  of  the  question,  at  least  so  far  as  the  house  of 
commons  is  concerned.  Lords  Brouo-ham  and  Lano:- 
dale,  sir  Samuel  Eomilly  and  Mr.  Curran  may  be 
mentioned  as  such.  On  the  other  hand,  Mr.  Bentham 
was  of  opinion  that  there  was  so  little  legislative 


'"  See  Mr.  Macaulay's  speech  in  the  commons,  June  1, 1853,  on  a 
bill  to  exclude  judges  from  the  house  of  commons.  The  chief  ques- 
tion was  to  exclude  the  vice-chancellor  from  a  seat  in  the  commons. 
Mr.  Macaulny  is  decidotlly  in  favor  of  letting  judges  sit  in  the 
commons. 


AND  SELF-GOVERNMENT.  245 

talent  in  the  world  that  no  place  fits  so  well  for 
legislative  business  as  the  bench,  and  that  it  was 
suicidal  to  exclude  the  judges.  The  questions  we 
have  to  answer  are  these :  Does  experience  teach  us 
that  judges,  having  a  seat  in  the  legislature,  where 
they  needs  must  belong  to  one  or  the  other  party, 
allow  themselves  to  be  influenced  on  the  bench  'i 
In  England,  there  are  striking  instances  that,  in 
modern  times,  they  may  resist  their  own  political 
bias,  in  Eldon,  Thurlow,  Mansfield,  and  llardwickc. 
But  this  remark  extends  to  common  cases  only. 
Were  they,  or  would  they  liavc  been  utterly  un- 
biased in  all  those  trials  that  may  be  called  political? 
The  pervading  character  of  self-government  and 
independence  of  law  has  certainly  given  to  the  bench 
a  traditional  independence.  But  how  long  has  tliis 
existed,  and  what  times  may  not  possibly  recur?  It 
appears,  throughout  tlie  Life  and  Correspondence  of 
justice  Story,  that  so  scxm  as  he  was  elevated  to  the 
bench  he  not  only  avoided  being  mixed  up  with 
politics  in  any  degree  whatsoever,  but  even  the  mere 
semblance  of  it.  lie  seems  to  have  been  peculiarly 
scrupulous  on  this  point. 

The  second  question  we  must  answer  is  this:  How 
does  the  judge  get  into  the  legislature  ?  Can  lie  do 
so  without  electioneering?  The  more  po])ular  a 
representative  government  is,  the  more  necessary 
the  immediate  contact  between  the  candidate  and  the 
constituents  becomes.  And  who  wishes  to  see  the 
judge,  that  ought  to  1)e  the  independent  oracle  of 
the  law,  in  this  position? 

Mr.  Benthunrs  observation  regarding  the  general 
21* 


246  ON  CIVIL  LIBERTY 

unfitness  of  tlie  world  at  large  for  legislative  busi- 
ness, and  the  peculiar  fitness  of  judges  for  it,  requires 
also  some  modification,  llow  is  it  with  sanitary- 
laws  ?  Few  physicians  sit  in  legislatures,  and  those 
that  have  a  seat  are  not  placed  there  because  they 
are  at  the  head  of  their  profession.  "We  must  neces- 
sarily trust  to  the  general  influence  under  which  a 
legislature  legislates.  As  to  the  fitting  of  the  bench 
for  legislative  business,  it  is  undoubtedly  true  in 
regard  of  a  large  class  of  that  business;  but  we  must 
not  forget  that  the  judge  is  and  ought  to  be  a  pecu- 
liar representative  of  conservatism ;  which  never- 
theless unfits  him,  in  a  measure,  for  all  that  business 
which  is  of  a  peculiarly  progressive  character. 
Almost  all  law  reforms  have  originally  been  resisted 
by  the  bench.  It  is  not  in  all  cases  to  be  regretted. 
They  are  the  breaks,  which  prevent  the  vehicle  from 
descending  too  fast  on  an  inclined  plane;  but  the 
retarding  force  must  certainly  be  overcome  in  many 
cases,  however  serviceable  it  may  be  that  the  action 
of  overcoming  them  may  have  been  modified  by 
them  in  its  very  process. 

I  cannot  help  believing,  then,  that  upon  the  whole 
judges  ought  to  be  excluded  from  the  legislature ; 
they  certainly  ought  to  be  so  with  us.  To  allow 
them  a  seat  in  concentrated  governments  as  in 
France  would  be  calamitous.  But  this  very  reason 
is,  a  fortiori,  one  why  judges  ought  not  to  be  elected 
by  the  people. 

We  are  frequently  asked  whether  the  elective 
judiciary  works  badly  ?  The  answer  is,  that  a  ball 
rolls  a  while  from  the  first  impulse  given  to  it.     So 


AND  SELF-GOVERNMENT.  247 

far  old  judges  have  generally  been  elected  under  the 
new  system ;  and  we  would  ask  on  the  other  hand : 
Has  the  former  system  worked  badly  ?  I  believe, 
then,  that  elective  judges  are  a  departure  from  sub- 
stantial civil  liberty,  because  it  is  a  departure  from 
thfe  all-important  independence  of  the  law. 

It  is  necessary  to  appoint  judges  for  a  long  period, 
and  the  best  is  probably  for  life,  with  a  proper  pro- 
vision which  prevents  incapacity  from  old  age." 
The  experience  which  is  required  and  the  authority 
he  must  have,  although  unsupported  by  any  material 
power,  make  this  equally  desirable,  as  well  as  the 
fact,  that  the  best  legal  talents  cannot  be  obtained 
for  the  bench,  if  the  tenure  amounts  to  a  mere  inter- 
ruption of  the  business  of  the  lawyer."  The  consti- 
tution of  the  French  republic  of  1848,  so  democratic 
in  its  character,  decrees  the  tenure  of  judicial  office 
to  be  for  life." 

It  is  for  a  similar  reason  of  public  importance  that 
the  salary  of  the  judges  be  liberal,  which  means  that, 
combined  with  the  honor  attached  to  a  seat  on  the 
bench,  it  be  capable  of  commanding  the  fairest  legal 
talents,  and  of  inciting  the  aml)ition  of  the  bench.  Tlio 
judge  must  enjoy,  as  has  been  stated,  proper  independ- 
ence; but  he  is  dependent,  and  in  the  worst  dogreo 
so,  if  he  is  conscious  that  the  best  lawyers  before  him 


"  See  Political  Ethics,  under  the  heails  of  Judge,  Imlipnidftice  of 
the  Judiciart/. 

'*  I  would  refer  the  reader,  on  all  those  sulijocts,  to  judjrc  riinm- 
bcrs's  speech  on  the  Judicial  Tenure,  in  the  Maryland  Convontiun, 
Baltimore,  1851. 

'3  This  constitution  will  be  found  in  the  apjiendix. 


248  ON  CIVIL  LIBEKTY 

are  superior  to  liim  in  talent,  experience,  learning 
and  character.  None  but  sucli  inferior  men  can  be 
obtained  for  an  illiberal  salary,  according  to  the  uni- 
versal law  that  the  laborer  is  worthy  of  his  hire,  and 
that  he  will  seek  to  obtain  this  hire  in  the  great 
market  of  labor  and  talent.  Even  the  common  con- 
sideration that  every  private  individual  expects  that 
his  affairs  will  be  served  best  by  an  efficient  clerk 
for  a  liberal  hire,  and  not  by  a  poorly  paid  hireling 
whose  incapacity  can  command  no  higher  wages, 
should  induce  us  to  pay  judges,  as  indeed  every  one 
who  must  be  paid,  and  is  worthy  of  being  paid  at 
all,  with  a  liberality  which  equally  avoids  lavishness 
and  penury.  Liberal  salaries  are  essential  to  a 
popular  government. 

To  make  judges  independent  or  remove  from  them 
the  possible  suspicion  of  dependence,  it  has  been 
ordered  in  the  constitution  of  the  United  States  that 
the  "judges  of  the  supreme  and  inferior  courts  shall 
hold  their  offices  during  good  behavior,  and  shall  at 
stated  times  receive  for  their  services  a  compensation 
which  shall  not  be  diminished  during  their  con- 
tinuance in  office."  This  principle  has  been  adopted 
in  most,  if  not  all  our  constitutions;  many  have 
added  that  it  shall  not  be  increased  either,  during 
continuance  in  office."  But  what  is  the  possible 
dependence  feared  from  an  increase  or  decrease  of 
salary  compared   to   that   unavoidable   dependence 


'■•  When  it  has  become  necessary  to  increase  the  salary  of  judges, 
the  difficulty  has  sometimes  been  avoided  by  the  judges  resigning, 
upon  the  understanding  that,  after  the  legislature  shall  have  in- 
creased the  salary,  they  should  be  reappointed. 


AND  SELF-GOVERNMENT.  249 

which  must  be  the  consequence  of  short  terms  of 
office,  and  of  appointment  by  election?  It  will 
hardly  be  necessary  to  mention  that  a  fixed  salary, 
independent  of  fees  and  fines,  is  indispensable  for 
the  independence  of  the  judge  and  the  protection  of 
the  citizen.  Even  common  decency  requires  it.  Don 
Miguel  of  Portugal  made  the  judges,  who  tried  poli- 
tical offenders,  depend  upon  part  of  the  fines  and 
confiscations  they  decreed,  and  we  know  what  was 
done  under  James  the  Second  and  lord  Jeffreys. 
The  hounds,  receiving  part  of  the  hunted  game,  sug-  ^ 
gest  themselves  at  once. 

With  a  view  of  making  the  judiciary  independent, 
the  removal  of  judges  from  office  has  been  justly 
taken  out  of  the  hands  of  the  executive.  The  im- 
movability of  judges  is  an  essential  element  of  civil 
liberty.  Neither  the  executive  nor  the  sovereign 
himself  ought  to  have  the  power  of  removing  a 
judge.  lie  can  therefore  be  removed  by  impeach- 
ment only,  and  this  requires,  according  to  the  consti- 
tution of  the  United  States,  two-thirds  of  the  votes 
of  the  senate.  In  some  states  thoy  can  be  removed 
by  two-thirds  of  the  whole  legislature.'* 


'5  It  seems  to  me  a  strange  anomaly  that,  as  it  would  seem  by  a 
late  resolution  of  the  United  States  senate,  the  president  liaa 
authority  to  remove  judges  in  the  "territories." 


260  ON  CIVIL  LIBERTY 


CHAPTER    XX. 

INDEPENDENCE   OF   JUS,  CONTINUED.     TRIAL   BY  JURY. 
THE  ADVOCATE. 

41.  The  judge  cannot  occupy  a  sufficiently  inde- 
pendent position  between  the  parties  by  tlie  accu- 
satorial proceeding  alone.  If  there  is  not  what  may 
be  called  a  division  of  the  judicial  labor,  separating 
the  finding  of  guilt  or  innocence,  or  of  the  facts  from 
the  presiding  over  the  whole  trial  and  the  applica- 
tion as  well  as  the  pronouncing  and  expounding  of 
the  law,  the  judge  must  still  be  exposed  to  taking 
sides  in  the  trial.  This  division  of  judicial  labor  is 
obtained  by  the  institution  of  the  jury.  This,  it 
seems  to  me,  is  one  of  the  most  essential  advantages 
of  this  comprehensive,  self-grown  institution.  It  is 
likewise  a  guarantee  of  liberty  in  gi'V'ing  the  people  a 
participation  in  the  administration  of  justice,  without 
the  ruin  and  horrors  of  an  administration  of  justice 
by  a  multitude,  as  at  Athens.  The  jury  is  moreover 
the  best  school  of  the  citizen,  both  in  teaching  him 
his  rights  and  to  protect  them,  and  of  practically 
teaching  him  the  necessity  of  law  and  government. 
The  jury,  in  this  respect,  is  eminently  conservative. 
In  this,  as  in  many  other  respects,  it  is  necessary 


AND  SELF-GOVERNMENT.  251 

that  the  institution  of  the  jury  exist  for  the  civil  trial 
as  well  as  for  the  penal,  and  not,  as  in  many  other 
countries,  for  the  latter  only.  The  necessity  of  the 
jury  does  not  militate  against  the  arbitration  courts, 
which  have  proved  a  great  blessing  in  all  countries 
in  which  they  have  been  properly  established,  or 
against  certain  courts  of  minor  importance  which 
may  be  advantageously  conducted  without  a  jury.' 

The  results  of  trial  by  jury  have  occasionally  been 
such  that  even  in  England  and  here,  voices  have 
been  raised  against  it,  not  indeed  very  loud  or  by 
weighty  authorities.  Men  feel  the  existing  evil  only ; 
not  those  that  would  result  a  hundredfold  from  an 
opposite  state  of  things.  Nor  are  those,  who  feel 
irritated  at  some  results  of  the  trial  by  jury,  ac- 
([uainted  with  the  operation  of  trials  without  jury. 
So  is  occasionally  the  publicity  of  trials  highly  in- 
convenient j  yet  should  we  desire  secret  trials?  J/i- 
berty,  as  we  conceive  it,  can  no  more  exist  without 
the  trial  by  jury — that  "buttress  of  liberty,*'  as 
Chatham  called  it,'^  and  our  ancestors  worshipped 
it — than  without  the  representative  system. 

The  Declaration  of  Independence  specifics,  as  one 
of  the  reasons  why  this  country  was  justified  iu 
severing  itself  from  the  mother  country,  that  Ameri- 
cans have  been  "deprived  in  many  cases  of  the 
benefits  of  trial  by  jury," 


'  For  the  history  of  this  iiistitution  in  poiiprul,  tiio  rentier  is  re- 
ferred to  >ViHiaiu  Forsyth,  History  of  tlic  Trial  t>y  Jury,  L<>iiil«n, 
18-')2. 

^  Lord  Erskine,  >vlirii  lie  was  raised  t>>  the  poernffe.  adopted  tlio 
words  Trial  by  .Jury,  as  the  bcroll  of  liis  cnit  of  arms. 


252  ON  CIVIL  LIBERTY 

It  may  not  be  improper  here  to  enumerate  briefly 
all  the  advantages  of  so  great  an  institution,  whether 
they  are  directly  connected  with  liberty  or  not. 

The  trial  by  jury,  then,  divides  the  labor  of  the 
administration  of  justice,  and  permits  each  part 
quietly  to  find  the  truth  in  the  sphere  assigned 
to  it; 

It  allows  the  judge  to  stand,  as  the  independent 
organ  of  the  law,  not  only  above  the  parties,  hostilely 
arraigned  against  each  other,  but  also  above  the 
whole  concrete  case  before  the  court ; 

It  enables  plain  common  and  practical  sense  pro- 
perly to  admix  itself  with  keen  professional  and 
scientific  distinction,  in  each  single  case,  and  thus 
prevents  the  effect  of  that  disposition  to  sacrifice 
reality  to  attenuated  theory,  to  which  every  indi- 
vidual is  liable  in  his  own  profession  and  peculiar 
pursuit — the  worship  of  the  means,  forgetting  the 
end  f 


^  And  this  is  the  reason  that  nearly  all  great  reforms  have 
■worked  their  way  from  ■without,  and  from  the  non-professional 
to  the  professional,  or  from  below  upward. 

I  beg  to  arrest  the  reader's  attention  for  a  moment  on  this  sub- 
ject. 

In  all  civilized  countries  it  is  acknowledged  that  there  are  some 
important  cases,  which  on  the  one  hand  it  is  necessary  to  decide, 
for  Mine  and  Thine  are  involved,  and  which,  on  the  other  hand,  are 
not  of  a  character  that  the  lines  of  demarcation  can  be  drawn  ■with 
absolute  distinctness,  in  a  manner  which  would  make  it  easy  to 
apply  the  law ;  e.  g.  the  cases  which  relate  to  the  imitation  of  a 
part  of  a  work  of  art,  of  a  pattern,  or  the  question  of  a  bona  fide 
extract  from  an  author's  work,  which,  according  to  the  Prussian 
copyright  law,  were  to  be  decided  by  a  jury  of  "experts, "  long  before 
the  general  introduction  of  the  jury  in  that  covmtry.     A  similar  case 


AJfD  SELF-GOVERNMENT.  253 

It  makes  a  participation  of  the  people  in  the  ad- 
ministration of  justice  possible  without  ha\'iug  the 

is  presented  when  an  officer  is  accused  of  unofficer-like  and  ungcn- 
tlemanly  conduct.  Now  the  question  becomes:  Are  not  these  cases 
far  more  frequent  than  it  is  supposed  in  the  countries  where  the 
trial  by  jury  does  not  exist  ?  Are  not  almost  all  complex  cases,  such 
as  require  in  a  high  degree  good  strong  common  sense,  the  tact  of 
practical  life,  together  with  the  law,  to  be  justly  decided  ?  Arc  not, 
perhaps,  the  greater  part  of  civil  cases  such  ?  The  English  and 
Americans  seem  to  believe  they  are.  They  believe  that  close  logical 
reasoning  is  indeed  necessary  in  the  application  of  the  law,  and 
they  assign  this  to  the  law-officers,  but  they  believe  also  tliat  a  high 
degree  of  plain  good  common  sense,  unshackled  by  technicalities,  is 
necessary  to  decide  whether,  "upon  the  whole,"  "taken  all  in  all," 
the  individual  case  in  hand  is  such  as  to  bring  it  within  the  province 
of  the  specific  law,  with  reference  to  which  it  is  brought  before  the 
court,  and  they  assign  this  part  of  the  trial  to  the  jury,  that  is  to 
non-professional  citizens.  The  English,  and  the  people  of  somo 
American  states,  do  not  only  follow  this  view  in  the  first  stage  of 
a  case,  but,  in  order  to  avoid  the  evil  of  letting  technicalities  get 
the  better  of  essential  justice,  of  letting  the  minds  of  professional 
lawj'ers,  whose  very  duty  it  is  to  train  themselves  in  strict,  uncom- 
pi'omising  logic,  decide  complicated  and  important  cases  in  the  last 
resort,  they  allow  an  appeal  from  all  the  judges  to  the  house  of 
lords,  or  to  the  senate.  I  do  not  mention  this  last  fact  as  one  to  bo 
imitated,  but  merely  as  cori'oborating  what  I  have  stated  before. 

It  appears  to  me  an  important  fact,  which  ought  always  to  be  re- 
membered when  the  subject  of  the  trial  by  jury  in  general  is  dis- 
cussed, that  by  the  trial  by  jury,  the  Anglican  race  endeavors,  among 
other  things,  to  insure  the  continuous  and  necessary  admixture  of 
common  sense,  in  the  decision  of  cases ;  and  who  can  deny  that  in 
all  practical  cases,  in  all  controversies,  in  all  disputes,  ami  in  ail 
cases  which  rcqture  the  application  of  general  rules  or  principles 
to  concrete  cases,  whatsoever  common  sense  is  indisponsablo,  is 
that  sound  judgment  which  avoids  the  Nimium?  Who  will  deny 
that  every  one  is  liable  to  have  this  tact  and  plain  soundness  of 
judgment  impaired  in  that  very  line  or  sphere  in  which  his  calling 
has  made  it  his  duty  to  settle  general  principles,  to  find  general 
VOL.  L— 22 


254  ON  CIVIL  LIBERTY 

serious  evil  of  courts,  consisting  of  multitudes  or 
mobs,  or  the  confusion  of  the  brandies  of  the  ad- 
ministration of  justice,  of  judges  and  triers; 

It  obtains  the  great  advantage  of  a  mean  of  views 
of  facts,  regarding  which  Aristotle  said  that  many 
are  more  just  than  one,  although  each  one  were  less 
so  than  the  one ;  without  incurring  the  disadvantages 
and  the  injustice  of  vague  multitudes; 

It  brings,  in  most  cases,  a  degree  of  personal  ac- 
quaintance with  the  parties,  and  frequently  with  the 
witnesses,  to  aid  in  deciding; 

It  gives  the  people  opportunities  to  ward  off  the 
.inadmissible  and  strained  demands  of  the  govern- 
ment ]* 

It  is  necessary  for  a  complete  accusatorial  pro- 
cedure ; 

It  makes  the  administration  of  justice  a  matter  of 
the  people,  and  awakens  confidence ; 

It  binds  the  citizen  with  increased  public  spirit  to 
the  government  of  his  commonwealth,  and  gives  him 
a  constant  and  renewed  share  in  one  of  the  hisfhest 


rules,  to  defend  general  points  ?  The  grammarian,  by  profession, 
frequently,  perhaps,  generally,  'wi-ites  pedantically  and  stiffly ;  the 
religious  controversialist  goes  to  extremes  ;  the  philosopher,  by 
profession,  is  apt  to  divide,  distinguish,  and  classify  beyond  what 
reality  warrants ;  the  soldier,  by  profession,  is  apt  to  sacrifice  ad- 
vantages to  his  science.  Dr.  Sangrado  is  the  caricature  of  the  truth 
here  maintained. 

The  denial  of  the  necessity  of  profound  study  and  professional 
occupation  would  be  as  fanatical  as  the  disregard  of  common  sense 
would  be  supercilious  and  unphilosophical.  Truth  stands,  in  all 
spheres,  emphatically  in  need  of  both. 

■•  The  whole  history  of  the  libel  down  to  Charles  Fox's  immor- 
tal bill  may  serve  as  an  illustration. 


AND  SELF-GOVERNMENT.  250 

public  affairs,  the  application  of  the  abstract  law  to 
the  reality  of  life — the  administration  of  justice; 

It  teaches  law  and  liberty,  order  and  rights,  jus- 
tice and  government,  and  carries  this  knowledge 
over  the  land  ;* 

It  throws  a  great  part  of  the  responsibility  upon 
the  people,  and  thus  elevates  the  citizen  while  it 
legitimately  strengthens  the  government ; 

It  does  not  only  elevate  the  judge,  but  makes  liini 
a  popular  magistrate,  looked  up  to  with  confidence 
and  favor;  which  is  nowhere  else  the  case  in  the 
same  degree,  and  yet  is  of  great  importance,  es- 
pecially for  liberty ; 

It  is  the  great  bulwark  of  liberty  in  monarchies 
against  the  crown,  and  a  safety-valve  in  republics; 

It  alone  makes  it  possible  to  decide  to  the  satisfac- 
tion of  the  public  those  cases  which  must  be  decided, 
and  which  nevertheless  do  not  lie  within  the  strict 
limits  of  the  positive  law ; 


*  Lord  Chancellor  Cranwortli  saiil,  in  February,  IHGo,  in  the  liousc 
of  lords : 

"There  were  many  other  suhjccts  to  he  considered.  Trial  by 
judge  instead  of  by  jury  had  been  eminently  successful  in  the  county 
courts;  but  in  attempting  to  extend  this  to  cases  tried  in  other 
coui-ts,  Ave  must  not  lose  sigiit  of  the  fact  that  we  should  be  taking 
a  step  towards  unfitting  for  their  duties  tliose  who  are  to  send  re- 
presentatives to  the  otlier  house  of  parliament,  who  are  to  perfonn 
municipal  functions  in  towns,  and  wlio  arc  to  exercise  a  variety  of 
those  local  jurisdictions  which  constitute  in  some  sort  in  this  coun- 
try a  system  of  self-government.  It  may  be  very  dangerous  to 
withdraw  from  them  that  iluty  of  assisting  in  the  administration  of 
justice.  Mechanics'  schools  may  afford  valuable  instruction,  but  I 
doubt  if  there  is  any  school  tliat  reads  such  ju-actical  lesson.")  of 
wisdom,  and  tends  so  much  to  strengthen  the  mind,  ns  as^isting  us 
jurymen  iu  tlic  administration  of  justice." 


25(3  ON  CIVIL  LIBERTY 

It  alone  makes  it  possible  to  reconcile,  in  some 
degree,  old  and  cruel  laws,  if  the  legislature  omits  to 
abolish  them,  with  a  spirit  of  humanity,  which  the 
judge  could  never  do  without  undermining  the 
ground  on  which  alone  he  can  have  a  firm  footing; 

It  is  hardly  possible  to  imagine  a  living,  vigorous 
and  expanding  common  law  without  it ; 

It  is  with  the  representative  system  one  of  the 
greatest  institutions  which  develop  the  love  of  the 
law,  and  mthout  this  love  there  can  be  no  sove- 
reignty of  the  law  in  the  true  sense ; 

It  is  part  and  parcel  of  the  Anglican  self-govern- 
ment; 

It  gives  to  the  advocate  that  independent  and 
honored  position  which  the  accusatorial  process  as 
well  as  liberty  requires,  and  it  is  a  school  for  those 
great  advocates  without  which  broad  popular  liberty 
does  not  exist. 

Mr.  Hallam,  speaking  in  his  work  on  the  Middle 
Ages  of  "  the  grand  principle  of  the  Saxon  polity, 
the  trial  of  facts  by  the  country,"  says,  "  from  this 
principle  (except  as  to  that  preposterous  relic  of  bar- 
barism, the  requirement  of  unanimity)  may  we  never 
swerve — may  we  never  be  compelled  in  wish  to 
swerve — by  a  contempt  of  their  oaths  in  jurors,  a  dis- 
regard of  the  just  limits  of  their  trusts."  To  these 
latter  words  I  shall  only  add,  that  the  fact  of  the 
jury's  being  called  by  the  law  the  country,  and  of 
the  indicted  person's  saying  that  he  will  be  tried  by 
God  and  his  country,  are  facts  full  of  meaning,  and 
expressive  of  a  great  part  of  the  beauty  and  the  ad- 


AND  SELF-GOVERXMEXT.  257 

vantages  of  the  trial  by  juiy."  There  is,  however,  no 
mysterious  efficacy  inherent  in  this  or  any  other 
institution,  nor  any  peculiar  property  in  the  name. 
Juries  must  be  well  organized,  and  must  conscien- 
tiously do  their  duty.  They  become,  like  all  other 
guarantees  of  liberty,  very  dangerous  in  the  hands 
of  the  government,  when  nothing  but  the  form  is 
left,  and  the  spirit  of  loyalty  and  of  liberty  is  gone. 
A  corrupt  or  facile  jury  is  the  most  convenient  thing 
for  despotism  and  anarchy. 

The  jury  trial  has  been  mentioned  here  as  one  of 
the  guarantees  of  liberty,  and  it  might  not  be  improper 
to  add  some  remarks  on  the  question  whether  the 
unanimous  verdict  ought  to  be  retained,  or  whether  a 
verdict  as  the  result  of  two-thirds,  or  a  simple  major- 
ity of  jurors  agreeing,  ought  to  be  adopted.  This 
is  an  important  subject,  occupying  the  serious  atten- 
tion of  many  persons.  But,  however  important  the 
subject  may  be,  and  connected  as  I  believe  it  to  be 
with  the  very  continuance  of  the  trial  by  jury  as  a 
wholesome  institution,  and  with  the  supremacy  of 
the  law,  it  is  one  still  so  much  debated  that  a  proper 
discussion  would  far  exceed  the  limits  to  which  this 
work  is  restricted ;  and  the  mere  avowal  that  it  is 
my  firm  conviction,  after  long  observation  and  study, 
that  the  unanimity  principle  ought  to  be  given  up, 
would  be  of  no  value.  I  beg,  however,  to  add  as  a 
fact,  at  all  events  of  interest  to  the  student,  that 
Locke  was  against  the  unanimity  principle.  •    Ilis 


*  On  all  these  subjects  connected  witli  the  jury  I  must  refer  to 
the  Political  Ethics. 

99* 


258  ON  CIVIL  LIBERTY 

constitution  for  South  Carolina  lias  this  provision : 
"  Every  jury  shall  consist  of  twelve  men;  and  it  shall 
not  be  necessary  they  should  all  agree,  but  the  ver- 
dict shall  be  according  to  the  consent  of  the  majority." 

It  is  besides  a  well-known  fact  that  our  number  of 
twelve  jurymen,  and  the  principle  of  their  unanimity, 
arose  out  of  the  fact  that  in  ancient  times  at  least 
twelve  of  the  compurgators  were  obliged  to  agree 
before  a  verdict  could  be  given,  and  that  compurga- 
tors were  added  until  twelve  of  them  agreed  one  way 
or  the  other/ 

I  conclude  here  my  remarks  on  the  institution  of 
the  jury,  and  pass  over  to  the  last  element  of  the 
independence  of  the  law — the  independent  position 
of  the  advocate. 

42.  A¥here  the  inquisitorial  trial  exists,  where  the 
judiciary  in  general  is  not  independent,  and  where 
the  judges  more  or  less  feel  themselves,  and  are 
universally  considered,  as  government  officers,  it  is 
in  vain  to  look  for  independent  advocates,  as  a  class 
of  men.  Their  whole  position,  especially  where  the 
trial  is  not  public,  prevents  the  development  of  this 
independence,  and  the  consideration  they  have  to 
take  of  their  future  career  would  soon  check  it 
where  it  might  occasionally  happen  to  spring  forth.^ 


^  Forsyth,  History  of  the  Trial  by  Jury. 

^  Feuerbach,  in  his  Manual  of  the  Common  German  Penal  Law, 
10th  edition,  §  623,  says  that  in  the  inquisitorial  proceeding  Ave 
have  to  represent  the  judge  to  our  minds  as  the  representative  of 
the  offended  state,  inasmuch  as  it  is  his  duty  to  see  justice  done 
for  it  according  to  the  penal  law  :  as  representative  of  the  accused, 
inasmuch  as  he  is  bound  at  the  same  time  to  find  out  everything  on 
which  tlie  innocence  or  a  less  degree  of  criminality  can  be  founded  ; 


AND  SELF-GOVERNMENT.  259 

The  independence  of  tlie  advocate  is  important  in 
many  respects.  The  prisoner,  in  penal  trials,  ought  to 
have  counsel.  Even  lord  Jeffrey,  who,  among  judges, 
is  what  Alexander  the  SLxtli  was  among  popes, 
declared  it,  as  far  back  as  the  seventeenth  century,  a 
cruel  anomaly  that  counsel  were  permitted  in  a  case 
of  a  few  shillings,  but  not  in  a  case  of  life  and  death. 
But  counsel  of  the  prisoner  can  be  of  no  avail,  if 
they  do  not  feel  themselves  independent  in  a  very 
high  degree.  This  independence  is  necessary  for  the 
daily  protection  of  the  citizen's  riglits.  It  is  import- 
ant for  a  proper  and  sound  development  of  the 
law;  for  it  is  not  only  the  decisions  of  the  judges 
which  frequently  settle  the  most  weighty  points  and 


ami  finally,  ns  ju'lfro,  inasmuch  ns  he  must  dccMc  upon  tlie  pivcn 
facts.  AVliy  not  add  to  tliis  (earful  tiia<l,  tlio  jaik-r,  (lie  executioner  ? 
Altbougli  a  "  defensor"  is  appointed,  it  iii  dlHicult  for  Jiim  to  do 
his  work  properly  ;  for  in  the  German  inniiisitnrial  process  tlio 
defence  hegins  when  the  inciuirinp:  judtje  has  finished,  or  tlie  "  acta" 
are  closed,  that,  is  when  the  report  of  tlic  judjic  is  made.  Now,  a 
lawyer  does  not  feel  very  free  to  attack  the  writing  of  a  judge, 
upon  whom  his  advancement  probably  depends,  even  if  any  latitude 
were  given  to  the  advocate.  Mr.  Mitlermaier,  noted,  J  H,  of  his 
Art  of  Defending,  2d  edition,  sjieaks  openly  of  the  great  difficulty 
encountered  by  the  "defensor,"  in  unveiling  tlie  imperfections  of 
the  acta  whicli  have  been  sent  him,  because  he  thereby  ottends  his 
superior,  upou  whom  his  whole  career  may  depend;  and  Mr.  Voget, 
tiie  defensor  of  the  woman  (Jottfricd,  in  IJremen,  who  had  poisoned 
some  thirty  persons,  fully  indorses  these  remarks  of  Mr.  Mitter- 
maier,  in  liis  work,  The  Poisoner,  0.  M.  Gottfried,  Bremen,  1H:J0 
(first  division,  pp.  17  and  18).  Ho  concludes  his  remarks  with 
these  words:  "Who  does  not  occasionally  think  of  the  pa.nsngc  1 
Sam.  211:  G — Non  inveni  in  te  quidquam  mali,  so<l  sntmpis  non 
places,"  (or,  as  our  version  of  the  bible  has  it:  Nevertheless,  Iho 
lords  favor  thee  not.) 


260  ON  CIVIL  LIBERTY 

riglits,  but  also  the  masterly  arguments  of  tlic  advo- 
cates; and  lastly  it  is  important  in  all  so-called 
political  trials. 

May  we  never  have  reason  to  wish  it  otherwise  ! 
The  limits  of  the  advocate,  especially  as  counsel  in 
criminal  cases,  and  which  doubtless  form  a  subject 
connected  with  liberty  itself,  nevertheless  belong 
more  properly  to  political  and  especially  to  legal 
ethics.  As  such  I  have  treated  of  them  in  the 
Political  Ethics.  I  own,  however,  that,  when  -writing 
the  work,  the  subject  had  not  acquired  in  my  mind 
all  the  importance  and  distinctness  which  its  farther 
pursuit,  and  the  perusal  of  works  on  this  important 
chapter  of  practical  ethics,  have  produced.  I  am 
sorry  to  say  that  very  few  of  these  works  or  essays 
seem  manfully  to'  grapple  with  it,  and  to  put  it  upon 
solid  ground.  It  is  desirable  that  this  should  be 
done  thoroughly  and  philosophically.  This  is  the 
more  necessary,  as  the  loosest  and  vaguest  notions 
on  the  rights  of  the  advocate  are  entertained  by 
many  respectable  men,  and  the  most  untenable 
opinions  have  been  uttered  by  high  authorities.® 

In  this  work,  however,  all  that  I  am  permitted  to 
do  is  to  indicate  the  true  position  of  the  advocate  in 
our  Anglican  system  of  justice,  and  to  allude  to  the 
duties  flowing  from  it. 

Most  writers  discuss  "  the  time-honored  usage  of 


3  For  instance,  lord  Brougham's  ■well-known  dictum  uttered  at 
the  trial  of  queen  Caroline — often  commented  upon,  but  never  taken 
back  or  modified  by  the  speaker;  p.  91,  Legal  and  Political  Herme- 
neutics.  See  also  an  article  on  License  of  Counsel  in  the  January 
number  1841  of  Westminster  RcvieiiV. 


AND  SELF-GOVERNMENT.  liOl 

the  profession  in  advocating  one  side,"  and  of  saying 
all  tliat  can  be  said  in  defence  of  the  prisoner.  No 
one  at  all  conversant  with  the  subject  has  ever  had 
any  doubt  upon  this  subject.  It  is  a  necessary  eflfect 
of  the  accusatorial  procedure.  Indeed,  it  forms  an 
essential  part  of  it.  But  the  writers  go  on  main- 
taining that  therefore  the  advocate  may,  and  indeed 
must,  do  and  say  for  his  client  all  that  he  himself 
would  do  and  say  for  himself,  had  he  the  requisite 
talent  and  knowledge.  And  here  lies  the  error, 
moral  as  well  as  legal. 

Ko  man  is  allowed  to  do  wrung,  for  instance  to  tell 
an  untruth,  or  to  asperse  the  character  of  an  inn(.M3ent 
person,  either  in  his  own  behalf  or  for  another.  The 
prisoner  would  do  wrong  in  lying,  and  no  one  has  a 
right  to  do  it  for  him.  The  lawyer  is  no  more  freed 
from  the  moral  law  or  the  obligation  of  truth  than 
any  other  mortal,  nor  can  he  divest  himself  of  his 
individuality  any  more  than  other  men.  If,  as  lord 
Brougham  stated  it,  the  only  object  of  counsel  is  to 
free  the  prisoner,  at  whatever  risk,  why,  then,  not 
also  do  certain  things  for  the  prisoner  which  he  wouM 
do,  were  he  free  ?  Many  an  indicted  murderer  would 
make  away  with  a  dangerous  witness,  if  the  prison 
did  not  prevent  him.  Why,  then,  ought  not  the  law- 
yer to  do  this  for  him?  Becau.se  it  would  be  mur- 
der ?  And  why  not  ?  If  the  advocate  is  to  say  and 
do  all  the  prisoner  would  do  and  say  for  himself, 
irrespective  of  morality,  the  supposed  case  is  more 
glaring,  indeed,  but  in  principle  the  same  with  many 
actual  ones.  The  fact  is,  the  rights  of  the  advocate,  or 
the  defence  of  their  speaking  on  one  side,  cannot  be 


262  ON  CIVIL  LIBERTY 

put  on  a  worse  foundation  than  by  thus  making  him 
a  part  of  the  prisoner's  individuality,  or  a  substitute. 
Nor  would  there  be  a  more  degrading  position  than 
that  of  letting  one's  talent  or  knowledge  for  hire,  no 
matter  whether  for  just  or  unjust,  moral  or  immoral 
purposes.  Indeed,  why  should  this  knowledge  for 
hire  begin  its  appropriate  operation  during  the  trial 
only,  if  escape  is  the  only  object  ?  Why  not  try  to  foil 
the  endeavors  of  the  detective  police?  Is  it  only 
because  the  retaining  fee  has  not  yet  been  paid,  and 
that,  so  soon  as  it  is  in  his  hand,  he  has  a  right  to  say 
with  the  ancient  poet :  I  deem  no  speaking  evil  that 
results  in  gain?'°  This  cannot  be.  All  of  us  have 
learned  to  venerate  Socrates,  whom  lord  Mansfield 
calls  the  greatest  of  lawyers,  for  having  made  victo- 
rious war  on  the  sophists,  and  established  ethics  on 
pure  and  dignifi.ed  principles ;  and  now  we  are  called 
upon  to  sanction  everything,  without  reference  to  mo- 
rality and  truth,  in  an  entire  and  highly  privileged 
class,  and  in  the  performance  of  the  most  sacred  busi- 
ness of  which  political  man  has  any  knowledge.  If 
lawyers  insist  upon  this  revolting  exemption  from 
the  eternal  laws  of  truth  and  rectitude,  they  ought  to 
consider  that  this  will  serve  in  the  end  as  a  suggestion 
to  the  people  of  returning  to  the  Athenian  court  of 
the  people. 

The  true  position  of  the  advocate  in  the  Anglican 
accusatorial  trial,  and  in  a  free  and  orderly  country, 
is  not  one  which  would  almost  assimilate  him  to  the 
"receiver."     It  is  a  far  different  one.     Nearly  in  all 


A'Jtai  /WEv  oihv  ^rifjia  cLv  xsjjji  xaxoy. 


AND  SELF-GOVERNXrENT,  263 

free  countries,  but  especially  in  all  modem  free 
countries,  has  the  advocate  assumed  a  prominent  po- 
sition. He  is  an  imjiortant  person  as  a/lvocate,  and 
as  belonging  to  that  jirolession  from  which  the  people 
necessarily  must  always  take  many  of  their  most 
efficient  law-makers,  from  which  arise  many  of  the 
greatest  statesmen,  whatever  the  English  prejudice, 
even  of  such  men  as  Chatham,  to  the  contrarv,  may 
long  have  been,  and  which  has  formed  in  every  free 
peo|de  many  of  their  immortal  orators. 

The  advocate  is  part  and  parcel  of  the  whole  nia- 
chincry  of  administering  justice,  as  much  so  as  the 
jury,  the  judge,  or  the  prosecutor.  IIo  forms  an 
integral  part  of  the  whole  contrivance  called  the 
trial ;  and  the  only  object  of  the  trial  is  to  find  out 
legal  truth,  so  that  justice  may  be  administered.  In 
this  trial,  it  has  been  found  most  desirable  to  place 
the  judge  beyond  the  parties,  to  let  both  parties  ap- 
pear before  him  and  to  let  both  jiartics  say  all  they 
can  say  in  their  favor,  so  that  the  truth  may  be  a.sccr- 
tained  without  the  judge's  taking  part  in  the  inquiry, 
and  thus  becoming  personally  interested  in  the  con- 
viction, or  in  either  party.  The  advocate  is  essentially 
an  amicus  curia? ;  he  helps  to  find  the  truth,  ami  for 
this  purpose  it  is  necessary  that  all  that  can  be  said 
in  favor  of  his  client  or  in  mitigation  of  the  law,  be 
stated ;  because  the  opposite  party  docs  the  opposite, 
and  because  the  case  as  well  as  t])c  law  ought  to  be 
viewed  from  all  sides,  before  a  decision  be  made. 
The  advocate  ought  not  only  to  say  all  that  his  client 
might  say,  had  he  the  necessary  skill  and  knowledge, 
but  even  more;  but  the  client  or  prisoner   has  no 


264  ON  CIVIL  LIBERTY 

right  to  spcalv  tlic  imtrutli  in  liis  own  behalf,  nor 
has  the  lawyer  the  right  to  do  it  for  him. 

Chief-Justice  Ilale  severely  reproves  the  misstat- 
ing authorities  and  thus  misleading  the  court,  but 
why  should  this  be  wrong,  and  the  misstating  of 
facts  not  ?  Many  prisoners  would  certainly  misstate 
authorities  if  they  could.  Trials  are  not  established 
for  lawyers  to  show  their  skill  or  to  get  their  fees, 
nor  for  arraigned  persons  to  escape.  They  are  es- 
tablished as  a  means  of  ascertaining  truth  and  dis- 
pensing justice  ;  but  not  to  promote  or  aid  injustice 
or  immorality.  The  advocate's  duty  is,  then,  to  say 
everything  that  possibly  can  be  said  in  favor  of  his 
case  or  client,  even  if  he  does  not  feel  any  strong 
reliance  on  his  argument,  because  what  appears  to 
himself  weak  may  not  appear  as  such  to  other  minds 
or  may  contain  some  truth  which  will  modify  the 
result  of  the  whole.  But  he  is  not  allowed  to  use 
falsehood,  nor  to  injure  others.  Allowing  this  to 
him  would  not  be  independence,  but  an  arbitrarily 
privileged  position,  tyrannical  toward  the  rest  of 
society."  To  allow  tricks  to  a  wdiole  profession,  or 
to  claim  them  by  law,  seems  monstrous.  Is  there  a 
separate  decalogue  for  lawyers  ? 


'•  The  famous  case  of.  Mi".  Philips,  iwvr  on  the  bench,  wlieu  de- 
fending Courvoisiev,  is  treated  atconsiderablclengthin  Towusend"s 
modern  State  Trials,  under  the  trial  of  Courvoisier.  It  must  be 
allowed  that  the  defence  is  not  successful,  though  ingenious.  On 
page  312  of  vol.  i.  of  that  work  the  reader  will  also  find  the  titles 
of  numei'ous  writings  bearing  on  the  moral  obligations  of  the  advo- 
cate, to  which  may  bo  added  those  I  have  mentioned  in  the  notes 
appended  to  my  remarks  on  the  advocate  in  the  2d  vol.  of  the  Po- 
litical Ethics.  I  also  refer  to  pp.  59  and  sequ.  in  my  Character  of 
the  Gentleman,  Charleston,  S.  C.  1847. 


AND  SELF-GOVERNMENT.  265 

The  lawyer  is  obliged,  as  was  stated  before,  to  find 
out  everything  that  can  be  found  in  favor  of  the 
person  who  has  intrusted  himself  to  his  protecting 
care,  because  the  opposite  will  be  done  by  the  oppo- 
site party.  He  has  no  right  to  decline  the  defence  of 
a  person,  which  means  the  finding  out  for  him  all 
that  fairly  can  be  said  in  his  favor,  except  indeed  in 
very  peculiar  cases.  Declining  the  defence  before- 
hand would  amount  to  a  prejudging  of  the  case,  and 
in  tlie  division  of  judicial  labor  every  one  ought  to 
be  defended."'  The  defence  of  possible  innocence, 
not  the  defeat  of  justice,  is  the  aim  of  counsel. 

Great  advocates  themselves,  such  as  Romilly,"  have 
very  distinctly  pronounced  themselves  against  that 
view  wliich  seems  at  present  the  prevailing  one 
among  the  lawyers;  and  Dr.  Thomas  Arnold  was  so 


'2  At  the  very  moment  that  tliese  pages  ore  passing  tliroupli  the 
press,  a  case  has  occurred  in  an  English  court,  of  a  young  man  in- 
dicted for  burglariously  entering  the  room  of  some  young  woman. 
His  counsel  in  the  defence  suggested  that  prolmhly  the  young  lady 
had  given  an  appointment  to  the  prisoner.  "That  is  not  in  the  brief," 
ci'ied  the  prisoner  himself,  and  the  court  justly  reprimanded  the  bar- 
rister. It  ought  to  bo  added  that  in  this  case  the  barrister  wrote  a 
letter  of  submission  to  the  court.  This  has  not  been  done  in  other 
cases  quite  as  bad  in  principle.  Thus,  another  publicly  reproved 
ban-ister  insisted  that  he  had  done  what  the  profession  required, 
■when  he  had  resorted  to  the  following  trick.  He  had  suhpa-nacd 
the  chief  witness  against  his  client,  so  that  he  could  not  ap|>car, 
and  then  argued  that  the  prosecutor  must  know  his  client  to  bo 
innocent,  else  he  would  certainly  have  produced  his  witness,  &c. 

"  There  is  a  very  excellent  passage  on  tliis  subject  in  the  reflec- 
tions of  sir  Samuel  llomill}',  on  himself  and  the  good  he  niiglit  do, 
should  he  be  appointed  Lord  Chancellor,  page  384  and  sciju.  of 
vol.  iii.  of  his  Memoirs,  «d  ed.  London,  lb4U. 
VOL.  1. — 23 


266  ON  CIVIL  LIBERTY 

deeply  impressed  with  the  moral  danger  to  which 
the  profession  of  the  law,  at  present,  exposes  its 
votary,  that  he  used  to  persuade  his  pupils  not  to 
become  lawyers,  while  Mr.  Bentham  openly  declared 
that  no  person  could  escape,  and  that  even  Romilly 
had  not  remained  wholly  untainted. 

It  ought  to  be  observed,  however,  that  a  more 
correct  opinion  on  the  obligations  of  the  advocate 
seems  to  be  fast  gaining  ground  in  England.  At 
present  it  seems  to  be  restricted  to  the  public,  but 
the  time  will  come  when  this  opinion  will  reach  the 
profession  itself.  Like  almost  all  reforms,  it  comes 
from  without,  and  will  ultimately  force  an  entrance 
into  the  courts  and  the  inns,  "We  are  thus  earnest 
in  our  desire  of  seeing  correct  views  on  this  subject 
prevail,  because  we  have  so  high  an  opinion  of  the 
importance  of  the  advocate  in  a  modern  free  polity. 


AND  SELF-GOVERN-irENT.  267 


CHAPTER    XXI. 

SELF-GOVERNMENT. 


43.  The  last  constituent  of  our  liberty  that  1  shall 
mention  is  local  and  institutional  sclf-f^ovcrnnient.* 


•  The  history  of  this  proud  word  is  this :  It  was  dou)jtlcss  made 
in  imitation  of  the  Greek  autonomy,  and  seems  originally  to  have 
been  used  in  a  moral  sense  only.  It  is  of  frequent  occurrence  in 
the  works  of  the  divines  who  flourished  in  the  sixteenth  and  seven- 
teenth centuries.  After  that  period  it  appears  to  have  hecn  dropped 
for  a  time.  We  find  it  in  none  of  the  English  dictionaries,  altliuii;rli 
along  list  of  words  is  given  compoumled  with  self,  and  aniong  them 
many  which  are  now  wliolly  out  of  use ;  for  instance,  Shnkspcare's 
Self-sovereignty.  In  Dr.  Worcester's  Universal  and  Crit.  Dictionary 
the  word  is  marked  with  a  stjir,  which  denotes  that  he  has  added 
it  to  Dr.  Johnson's,  and  the  authority  given  is  Palcy,  who  to  my  cer- 
tain knowledge  does  not  use  it  in  his  Political  Philosophy,  nor  have 
several  of  my  friends  succeeded  in  finding  it  in  any  other  part  of 
his  works,  although  diligent  search  has  been  made. 

Whether  the  term  was  first  used  for  political  self-government  in 
England  or  America  I  have  not  been  able  to  ascertain.  Hicliard 
Price,  D.  D.,  used  it  in  a  political  sense  in  his  Observations  dii  the 
Nature  of  Civil  Liberty,  &c.  3d  edition,  London,  1770,  although  it 
does  not  clearly  appear  whether  he  means  what  we  now  designate 
by  independence,  or  internal  (domestic)  self-govcniment.  Jefferson 
said  in  1798  that  "the  residuary  rights  are  reserved  to  their  (tiie 
American  States)  own  self-govenunent."  The  term  is  now  freely 
used  both  in  Englanil  and  America.  In  the  former  country  we  find 
a  book  on  Local  Self-governnient ;  in  ours,  Daniel  Webster  said,  on 
May  the  22d,  1852,  in  his  Fancuil  Hall  speech:   "  Dut  I  say  to  you 


268  ON  CIVIL  LIBEKTY 

Many  of  the  guarantees  of  individual  liberty  which 
have  been  mentioned  receive  their  true  import  in  a 
pervading  system   of  self-government,  and  on  the 


and  to  our  whole  country,  and  to  all  the  crowned  heads  and  aristo- 
cratic powers  and  feudal  systems  that  exist,  that  it  is  to  self-govern- 
ment, the  great  principle  of  popular  representation  and  administra- 
tion— the  system  that  lets  in  all  to  participate  in  the  counsels  that 
are  to  assign  the  good  or  evil  to  all — that  we  may  owe  what  we  are 
and  what  we  hope  to  be." 

Earl  Derby,  when  lately  premier,  said,  in  the  house  of  lords,  that 
the  officers  sent  from  abroad  to  assist  in  the  funeral  of  the  duke  of 
Wellington  would  "bear  witness  back  to  their  own  country  how 
safely  and  to  what  extent  a  people  might  be  relied  upon  in  whom 
the  strongest  hold  of  their  government  was  their  own  reverence  and 
respect  for  the  free  institutions  of  their  country,  and  the  principles 
of  popular  self-government  controlled  and  modified  by  constitutional 
monarchy." 

In  one  Avord,  self  government  is  now  largely  used  on  both  sides  of 
the  Atlantic,  in  a  political  sense. 

This  modem  use  of  the  word  is  no  innovation,  ns  it  was  no  inno- 
vation when  St.  Paul  used  the  old  Greek  word  wiVtij  in  the  vastly 
expanded  sense  of  christian  faith.  Ideas  must  be  designated.  The 
innovation  was  Christianity  itself,  not  the  use  of  the  word  to  desig- 
nate an  idea  greater  than  Pistis  could  have  signified  before. 

That  self-government  in  politics  is  always  applied  by  the  English 
speaking  race  for  the  self-government  of  the  people  or  of  an  insti- 
tution, in  otlicr  words  that  self  has  in  this  sense  a  reflective  mean- 
ing, is  as  natural  as  the  fact  itself  that  the  word  has  come,  in  course 
of  time,  to  be  applied  to  political  government,  simply  because  we 
must  express  the  idea  of  a  people  or  a  part  of  a  people  who  govern 
themselves  and  are  not  governed  by  some  one  else.  It  is  as  natural 
as  that  in  Russia  the  word  self  should  be  used  in  the  term  autocrat 
(self-ruler)  not  in  its  reflective,  but  in  its  exclusive  sense,  and 
should  mean  him  that  himself  rules. 

Self-government  belongs  to  the  Anglican  race,  and  the  English 
word  is  used  even  by  foreigners.  A  German  and  a  French  states- 
man, both  distinguished  in  literature  and  politics,  used  not  long  ago 
the  English  word  in  conversations  in  their  own  languages  with  me. 


AND  SELF-GOVERNMENT.  289 

Other  hand  are  its  refreshing  springs.  In(livl<liial 
liberty  consists,  in  a  great  measure,  in  poliiioallv 
acknowledged  self-reliance,  and  self-government  i.s 
the  sanction  of  self-reliance  and  self-determination  in 
the  various  minor  and  larger  circles  in  which  govern- 
ment acts  and  of  wliicli  it  consists.  Without  local 
self-government,  in  other  words  self-government  con- 
sistently carried  out  and  ap})lied  to  the  realities  of 
life,  and  not  remaining  a  mere  general  theory,  there 
is  no  real  self-government  according  to  Anglican 
views  and  feelings.  Self-government  is  founded  on 
the  willingness  of  the  people  to  take  care  of  tlieir 
own  affairs,  and  the  absence  of  that  disposition  which 
looks  to  the  general  government  for  everything ;  as 
well  as  on  the  willingness  in  each  to  let  others  take 
care  of  their  own  affairs.  It  cannot  cxi.st  where  the 
general  principle  of  interference  prevails,  that  is,  tlie 
general  disposition  in  what  is  commonly  c^alled  the 
governiJieut,  to  do  all  it  j)ossibly  can  do  and  to  sub- 
stitute its  action  for  individual  or  minor  activity  and 
for  self-reliance.  Self-government  is  the  corollary  of 
liberty.  So  far  we  have  chiefly  spoken  of  that  part 
of  liberty  which  consists  in  checks,  except  indeed 
when  we  treated  of  representative  legislatures ;  .self- 
government  may  be  said  to  be  liberty  in  action.  It 
requires  a  pervading  conviction  throughout  the  wliole 
community  that  government,  and  c.^jiecially  the  exe- 
cutive and  administrative  branch,  should  do  nothing 
but  what  it  neccs.sarily  must  do,  and  which  ciinnot, 
or  ought  not,  or  will  not  be  done  by  self-action;  and 
that,  moreover,  it  should  allow  matters  to  grow  an<l 
develop  themselves.  Self-g«ivevnment  implies  .self- 
28* 


270  ON  CIVIL  LIBERTY 

institution,  not  only  at  tlic  first  setting  out  of  govern- 
ment, but  as  a  permanent  principle  of  political  life. 
In  a  pervading  self-government,  the  formative  action 
of  the  citizens  is  tlie  rule ;  the  general  action  of  the 
government  is  the  exception,  and  only  an  aid.  The 
common  action  of  government  in  this  system  is  not 
originative,  but  regulative  and  moderative,  or  con- 
ciliative and  adjusting.  Self-government,  therefore, 
transacts  by  far  the  greater  bulk  of  all  public  business 
through  citizens,  who,  even  while  clad  with  authority, 
remain  essentially  and  strictly  citizens,  and  parts  of 
the  people.  It  does  not  create  nor  tolerate  a  vast 
hierarchy  of  officers,  forming  a  class  of  mandarins  for 
themselves,  and  acting  as  though  they  formed  and 
were  the  state,  and  the  people  only  the  substratum 
on  which  the  state  is  founded,  similar  to  the  former 
view  that  the  church  consists  of  the  hierarchy  of 
priests  and  that  the  laity  are  only  the  ground  on 
which  it  stands. 

A  pervading  self-government,  in  the  Anglican 
sense,  is  organic.  It  does  not  consist  in  the  mere 
negation  of  power,  which  would  be  absurd,  for  all 
government  implies  power,  authority  on  the  one 
hand  and  obedience  on  the  other ;  nor  does  it  consist 
in  mere  absence  of  action,  as  little  as  the  mere  absence 
of  censorship  in  China  is  liberty  of  the  press.  It 
consists  in  organs  of  combined  self-action,  in  institu- 
tions, and  in  a  systematic  connection  of  these  institu- 
tions. It  is  therefore  the  opposite  at  once  of  a 
disintegration  of  society  into  individual,  dismembered 
and  sejunctive  independencies,  and  of  despotism, 
whether  this  consist  in  the  satrapic  despotism  of  the 


AND  SELF-GOVERNMENT.  271 

east  (in  which  the  pacha  or  satrap  embodies  indeed 
the  general  principle  of  nnfrccdoin  in  relation  to  his 
superior,  but  is  a  miniature  despot  or  sultan  to  all 
below  him),  or  whether  it  consist  in  the  centralized 
despotism  resting  on  a  comi)act  and  thoroughly  sys- 
temized  hierarchy  of  officials,  as  in  China,  or  in  the 
European  despotic  countries.  Anglican  self-govern- 
ment differs  in  principle  from  the  scj unction  into 
which  ultimately  the  government  of  the  Netherlands 
lapsed;  and  it  is  equally  far  from  popular  absolutism, 
in  which  the  majority  is  the  absolute  despot.  The 
majority  may  shift,  indeed,  in  popular  absolutism,  but 
the  principle  does  not,  and  the  whole  can  only  be 
called  a  mutual  tyrannizing  society,  not  a  self-govern- 
ment. An  American  orator  of  note  has  lately  called 
self-government,  a  people  sitting  in  committee  of 
the  whole.  It  is  a  happy  expression  of  wliat  he  con- 
ceives self-government  to  be.  We  understand  at 
once  what  he  means;  but  what  he  moans  is  tho 
Athenian  market  democracy,  in  its  worst  time,  or  as 
a  French  writer  has  expressed  it,  Le  pcuple-cmpcreur, 
the  people-despot.  It  is,  in  fact,  one  of  tlie  oppo.sitca 
of  self-government,  as  much  so  as  Napoleon  the  First 
expressed  another  opposite  in  his  favorite  dictum : 
"Everything  for  the  people,  nothing  by  the  pcojilc." 
Self-government  means :  Everything  for  the  people, 
and  by  the  people,  considered  as  tlie  totality  of 
organic  institutions,  constantly  evolving  in  tlioir 
character,  as  all  organic  life  is,  but  not  a  dictatorial 
multitude.  Dictating  is  the  rule  of  the  army,  not  of 
liberty;  it  is  the  destruction  of  individuality.  But 
liberty,  as  we  have  seen,  consists  in  a  !'r("at  measure 
in  protection  of  individuality. 


272  ON  CIVIL  LIBERTY 

While  Napoleon  the  First  thus  epigrammatically 
expressed  the  essence  of  French  centralization,^  his 
chief  antagonist,  William  Pitt,  even  the  tory  premier, 
could  not  help  becoming  the  organ  of  Anglican  self- 
government,  as  appears  from  the  anecdote,  which  I 
relate  in  full  as  it  was  lately  given  to  the  public, 
because  the  indorsement  by  the  uncompromising 
soldier  gives  it  additional  meaning : 

"  A  day  or  two  before  the  death  of  the  duke  of 
Wellington,  referring  to  the  subject  of  civic  feasts, 
he  told  an  incident  in  the  life  of  Pitt  which  is  worth 
recording.  The  last  public  dinner  which  Pitt  attended 
was  at  the  Mansion  house ;  when  his  health  was  pro- 
posed as  the  savior  of  his  country.  The  duke  ex- 
pressed his  admiration  of  Pitt's  speech  in  reply; 
Avhich  was  in  substance,  that  the  country  had  saved 
herself  by  her  own  exertions,  and  that  every  other 
country  might  do  the  same  by  following  her  ex- 
ample."'' 

Self-government  is  in  its  nature  the  opposite  to 
political  apathy  and  that  moral  torpidity  or  social 
indifference  which  is  sure  to  give  free  play  to  abso- 


^  As  to  the  first  part  of  this  imperial  dictum — tout  pour  le  peu- 
ple — we  know  very  well  how  difficult  it  is  to  know  what  is  for  the 
people,  without  institutional  indexes  of  public  opinion,  and  how 
easy  it  is,  even  for  the  wisest  and  the  best,  to  mistake  and  substitute 
individual,  family  and  class  interests  and  passions  for  the  wants  of 
the  people.  This  indeed  constitutes  one  of  the  inherent  and  greatest 
difficulties  of  monarchical  despotism.  A  benevolent  eastern  despot 
could  not  have  said  it,  for  there  is  no  people,  politically  speaking, 
in  Asia ;  and  for  a  European  ruler  it  was  either  hypocritical,  or 
showing  that  Napoleon  was  ignorant  of  the  drift  of  modern  civiliza- 
tion, of  which  political  development  forms  so  large  a  portion. 

^  London  Spectator,  of  September  18,  1852. 


AND  SELF-GOVERNMENT.  273 

lutism,  or  else  to  dissolve  the  whole  polity.  We 
have  a  fearful  instance  in  the  later  Roman  emjtire. 
It  draws  its  strength  from  self-reliance,  as  has  been 
stated,  and  it  promotes  it  in  turn ;  it  cannot  exist 
where  there  is  not  in  each  a  disposition,  ability  and 
manliness  of  character,  willing  and  able  to  acknow- 
ledge it  in  others.  Nothing  strikes  an  observer,  accus- 
tomed to  Anglican  self-government,  mere  strongly 
in  France  than  the  constant  desire  and  tendency 
even  in  the  French  democracy  to  interfere  with 
all  things  and  actions,  and  to  leave  nothing  to  self- 
development.  Self-government  requires  politically, 
in  bodies,  that  self-rule  which  moral  self-government 
requires  of  the  individual — the  readiness  of  resigning 
the  use  of  power  which  we  may  possess,  quite  «as 
often  as  using  it.  Yet  it  would  be  a  great  mistake 
to  suppose  that  self-government  imphes  weakness. 
Absolutism  is  weak,  which  indeed  can  summon  great 
strength  upon  certain  occasions,  as  all  concentration 
can;  but  it  is  no  school  of  strength  or  character;  nor 
is  a  certain  concentration  by  any  means  foreign  to 
self-government,  but  it  is  not  left  in  the  hands  of  the 
executive,  to  use  it  arbitrarily.  Nor  is  it  maintained 
that  self-government  necessarily  leads  in  each  single 
case  soonest  and  most  directly  to  a  desired  end,  es- 
pecially when  this  belongs  to  the  physical  welfare  of 
the  people,  nor  that  absolute  and  centralized  govern- 
ments may  not  occasionally  perform  brilliant  deeds, 
or  carry  out  sudden  improvements  on  a  vast  scale 
which  it  may  not  lie  in  the  power  of  self-govern- 
ments so  rapidly  to  execute.  But  the  main  (piestion 
for  the  freeman  is  which  is  the  most  befittLug  to  man 


274  ON  CIVIL  LIBERTY 

in  his  nobler  state;  which  produces  the  best  and 
most  lasting  results  upon  the  whole  and  in  the  long 
run ;  which  effects  the  greatest  stability  and  continu- 
ity of  development ;  in  which  is  more  action  of 
Bound  and  healthful  life  and  not  of  feverish  parox- 
ysms ?  Is  it  the  brilliant  exploits  which  constitute 
the  grandeur  of  nations  if  surveyed  in  history,  and 
are  there  not  many  brilliant  actions  peculiar  to  self- 
government  and  denied  to  centralized  absolutism  ? 

Where  self-government  does  not  exist,  the  people 
are  always  exposed  to  the  danger  that  the  end  of 
government  is  lost  sight  of,  and  that  governments 
assume  themselves  as  their  own  ends,  sometimes 
under  the  name  of  the  country,  sometimes  under  the 
name  of  the  ruling  house.  Where  self-government 
exists,  a  somewhat  similar  danger  presents  itself 
in  political  parties.  They,  too,  frequently  assume 
themselves  as  the  end  and  object,  and  forget  that  they 
can  have  a  right  meaning  only  if  they  are  in  the 
service  of  the  country,  Man  is  always  exposed  to 
the  dangler  of  substitutino^  the  means  for  the  ends. 
The  variations  we  might  make  on  the  ancient  Propter 
vitam  vivendi  perdere  causas,  with  perfect  justice,  are 
indeed  endless.'* 

Napoleon  the  First,  who  well  knew  the  character 
of  absolute  government  and  pursued  it  as  the  great 
end  of  his  life,  nevertheless  speaks  of  the  impuis- 
sance  de  la  force — the  impotency  of  power.      He 


■•  Would  not  all  tlie  following,  and  many  more  find  their  daily 
applications:  Propter  imperium  imperandi  perdere  causas;  Propter 
ecclesiam  ecclesite  perdere  causas ;  Propter  legem  legis  perdere 
causas ;  Propter  argumentationcm  argument!  perdere  causas ; 
Propter  dictioncm  dicendi  pci'dcre  causas  ? 


AND  SELF-GOVERNMENT.  275 

felt,  on  his  imperial  throne,  which  on  another  and 
public  occasion  he  called  wood  and  velvet  unless  oc- 
cupied by  him,  and  which  was  but  another  wording  ol' 
Louis  the  Fourteenth's  I'dtat  c'cst  moi,  that  which  all 
sultans  have  felt  when  their  janizaries  deposed  thcra 
— he  felt,  that  of  all  governments  the  czar-govern- 
ment is  the  most  precarious.  lie  felt  what,  with 
other  important  truths,  Mr.  de  Toc(iueville  had  the 
boldness  to  tell  the  national  assembly,  in  a  carefully 
considered  report  of  a  committee,  in  1851,  when  ho 
said: 

"  That  people,  of  all  nations  in  the  whole  world, 
which  has  indeed  overthrown  its  government  more 
frequently  than  any  other,  has,  nevertheless,  the 
habit,  and  feels  more  than  any  other  the  necessity  of 
being  ruled. 

"  The  nations  which  have  a  federal  existence,  even 
those  which,  without  having  divided  tlic  sovereignty, 
possess  an  aristocracy,  or  who  enjoy  [)rovinciid  liber- 
ties deeply  rooted  in  their  traditions — these  nations 
arc  able  to  exist  a  long  time  witli  a  feeble  govern- 
ment, and  even  to  sujiport,  for  a  certain  i)erit.>d,  the 
complete  absence  of  a  government.  Each  part  ol' 
the  people  has  its  own  life,  which  permits  society  to 
support  itself  for  some  time  when  the  general  life  is 
suspended.  But  arc  we  one  of  those  nations?  Have 
we  not  centralized  all  matters,  and  thus  created  of 
all  governments  that  which,  indeed,  it  is  easiest  to 
upset,  but  with  which  it  is  at  the  same  time  the  most 
difficult  to  dispense  for  a  moment?'" 


<»  Mr.  dc  Tocqucvillo  made  tbia  report  on  the  8tli  of  July,  m 
the  iiaiiio  (if  tliL-  iiuijoiity  of  tlmt  ci'iiiinitteo,  tu  which   li:i'l  I'l-i-ii 


276  ON  CIVIL  LIBERTY 

With  this  extract  I  conclude,  for  the  present,  my 
remarks  on  self-government,  and  with  them  the  enu- 
meration of  the  guarantees  and  institutions  which 
characterize,  and  in  their  aggregate  constitute  An- 
glican liberty. 

They  prevail  more  or  less  developed  wherever  the 
Anglican  tribe  has  spread  and  formed  governments, 
or  established  distinct  polities.  Yet,  as  each  of  them 
may  be  carried  out  with  peculiar  consistency,  or  is 
subject  to  be  developed  under  the  influence  of  addi- 
tional circumstances,  or  as  a  peculiar  character  may 
be  given  to  the  expansion  of  the  one  or  the  other,  it 
is  a  natural  consequence  that  the  system  of  guaran- 
tees which  we  have  called  Anglican  presents  itself 
in  various  forms.  All  the  broad  Anglican  princi- 
ples, as  they  have  been  stated,  are  necessary  to  us, 
but  there  is,  nevertheless,  that  which  we  can  call 
American  liberty — a  development  of  Anghcan  liberty 
peculiar  to  ourselves.  Those  features  which  may, 
perhaps,  be  called  the  most  characteristic,  are  given 
in  the  following  chapter. 


referred  several  propositions  relating  to  a  revision  of  the  constitu- 
tion. It  was  tlie  time  >Ylien  the  constitutional  term  of  the  president 
drew  to  its  end,  and  the  desire  of  annulling  the  ineligibility  for  a 
second  term  became  manifest.  It  was  the  feverish  time  that  pre- 
ceded the  second  of  December,  destined  to  become  another  of  the 
many  commentaries  on  the  facility  with  which  governments  founded 
upon  centralization  are  upset,  by  able  conspu'acies  or  terror- 
striking  surprises,  and  how  easy  it  is  in  such  states  to  obtain  an 
acquiescent  majority  or  its  semblance,  as  previously  the  revolution 
of  Fe))ruai'y  had  been,  when  the  Orleans  dynasty  was  expelled. 


AND  SELF-GOVERNMENT.  277 


CHAPTER    XXTI. 

AMERICAN  LIBERTY. 

American  liberty  belongs  to  the  great  division  of 
Anglican  liberty.  It  is  foiindod  upon  the  checks, 
guarantees  and  self-government  of  the  Anglican 
tribe.  The  trial  byjury,  the  representative  govern- 
ment, the  common  law,  self-taxation,  the  supremacy 
of  the  law,  publicity,  the  submission  of  the  army  to 
the  legislature,  and  whatever  else  has  been  enume- 
rated, form  part  and  parcel  of  our  liberty.  There 
are,  however,  features  and  guarantees,  which  are  ])e- 
culiar  to  ourselves,  and  which,  therefore,  we  may  say 
constitute  American  liberty.  They  may  be  summed 
up,  perhaps,  under  these  heads :  republican  federal- 
ism, strict  separation  of  the  state  i'roux  the  church, 
greater  equality  and  acknowledgment  of  abstract 
rights  in  the  citizen,  and  a  more  popular  or  demo- 
cratic cast  of  the  whole  polity. 

The  Americans  do  not  say  that  tliere  can  be  no 
liberty  without  republicanism,  nor  do  they,  indeed, 
believe  that  wherever  a  rei)ublican  or  kingdc^ss 
government  exists,  there  is  liberty.  The  founders 
of  our  own  independence  acknowledged  that  freed<Mn 
can  exist  under,  a  monarchical  government,  in  the 
very  act  of  their  declaration  of  independence. 
VOL.  I.— 2-i 


278  ON  CIVIL  LIBERTY 

Througliout  that  instrument  tlie  Americans  are 
spoken  of  as  freemen  whose  rights  and  liberties 
England  had  unwarrantably  invaded.  It  rests  all 
its  assertions  and  all  the  claimed  rights  on  the 
liberty  that  had  been  enjoyed,  and  after  a  long  re- 
cital of  deeds  of  misrule  ascribed  to  the  king,  it 
says:  "A  prince,  whose  character  is  thus  marked 
by  every  act  which  may  define  a  tyrant,  is  unfit  to 
be  the  ruler  of  a  free  people."  It  broadly  admits, 
therefore,  that  a  free  people  may  have  a  monarch, 
and  that  the  Americans  were,  and  considered  them- 
selves a  free  people  before  they  claimed  to  form  a 
separate  nation. 

Nevertheless,  it  will  be  denied  by  no  one  that  the 
Americans  believe  that  to  be  the  happiest  political 
state  of  things  in  which  a  republican  government  is 
the  fittest;  nor  that  republicanism  has  thoroughly 
infused  itself  into  all  their  institutions  and  views. 
This  republicanism,  though  pronounced  at  the  time 
of  the  revolution  only,  had  been  long,  and  histori- 
cally prepared,  by  nearly  all  the  institutions  and  the 
peculiarly  fortunate  situation  of  the  colonies,  or,  it 
may  be  said,  that  the  republican  elements  of  British 
self-government  found  a  peculiarly  favorable  soil  in 
America  from  the  first  settlements. 

But  it  is  not  only  republicanism  that  forms  one  of 
the  prominent  features  of  American  liberty,  it  is  re- 
presentative republicanism  and  the  principle  of  con- 
federation or  federalism,'  which  must  be  added,  in 


'  Federalism  is  taken  here  of  course  in  its  philosophical,  and  not 
in  its  party  sense. 


AND  SELF-GOVERNMEXT.  279 

order  to  express  this  principle  correctly.  "We  do 
not  only  consider  the  representative  principle  neces- 
sary in  all  our  states  in  their  unitary  character,  hut 
the  framers  of  our  constitution  boldly  conceived  a 
federal  republic,  or  the  application  of  the  representa- 
tive principle  with  its  two  houses  to  a  confederacy. 
It  was  the  first  instance  in  history.  The  Nether- 
lands, which  served  our  forefathers  as  models  in 
many  respects,  even  in  the  name  bestowed  on  our 
confederacy,  furnished  them  with  no  example  f<jr  this 
great  conception.  It  is  the  chief  American  contribu- 
tion to  the  common  treasures  of  political  civilization. 
It  is  that  by  which  America  will  chiefly  influence 
other  parts  of  the  world.  Already  are  voices  heard 
in  Australia  for  a  representative  federal  republic  like 
ours.  Switzerland,  so  far  as  she  has  of  late  reformed 
her  federal  constitution,  has  done  so  in  avowed  imi- 
tation of  the  federal  pact  of  our  Union.  I  consider 
the  mixture  of  wisdom  and  daring,  shown  in  the 
framing  of  our  constitution,  as  one  of  the  most  re- 
markable, and  one  of  the  rarest  in  all  history. 

Of  the  strict  separation  of  the  church  from  the 
state,  in  all  the  federated  states,  I  have  spoken  al- 
ready. The  Americans  consider  it  as  a  legitimate 
fruit  of  the  liberty  of  conscience.  They  believe  that 
the  contrary  would  lead  to  disa.strous  consequences 
with  reference  to  religion  itself,  an<l  it  is  undeniable 
that  another  state  of  things  could  not  by  possibility 
have  been  established  here.  We  believe,  moreover, 
that  the  great  mission  which  this  country  has  t«) 
perform,  with  reference  to  Europe,  requires  tlii^  '"';'! 


280  ON  CIVIL  LIBERTY 

divorce  of  state  and  church  (not  religion).^  Doubt- 
less this  unstinted  liberty  leads  to  occasional  incon- 
venience ;  even  the  multiplicity  of  sects  itself  is  not 
free  from  some  evils ;  but  how  would  it  be  if  this 
divorce  did  not -exist?  The  Americans  cling  with 
peculiar  fervor  to  this  very  principle.  We  carry 
the  principle  of  political  equality  much  farther  than 
any  free  nation.  We  had  no  colonial  nobility,  al 
though  some  idea  of  establishing  it  was  entertained 
in  England  when  the  revolution  broke  out,  and  the 
framers  of  the  constitution  took  care  to  forbid  every 
state  and  the  United  States  collectively,  from  esta- 
blishing any  nobility.  Even  the  estabhshment  of  the 
innocent  Cincinnati  Society  gave  umbrage  to  many.^ 


2  I  lately  saw  a  pamphlet  -written  by  an  American  minister  in 
■which  the  constitution  of  the  United  States  was  called  atheistical 
— an  expression  I  have  seen  before.  I  do  not  pretend  exactly  to 
understand  its  meaning.  I  suppose,  however,  that  the  word  athe- 
istical is  taken  in  this  case  as  purely  negative  and  as  equivalent  to 
non-mentioning  God,  not,  of  course,  as  eqmvalent  to  reviling  the 
deity.  Even  in  this  more  moderate  sense,  however,  the  expression 
seems  to  me  surprising.  There  was  a  time  when  every  treaty,  nay 
every  bill  of  lading  began  with  the  words,  In  the  name  of  the  Holy 
Trinity,  and  every  physician  put  the  alpha  and  omega  at  the  top  of 
his  recipe.  Whatever  the  sources  may  have  been  from  which 
these  usages  sprang,  I  believe  it  will  be  admitted  that  the  modern 
usage  is  preferable,  and  that  it  does  not  necessarily  indicate  a  di- 
minished zeal.  The  most  religious  among  the  framers  may  not 
have  thought  of  placing  the  name  of  God  at  the  head  of  our  con- 
stitution for  the  very  reason  that  God  was  before  their  eyes,  and 
that  this  occasion  did  not  suggest  to  them  the  idea  of  specially  ex- 
pressing their  belief.     Kec  deus  intersit  nisi  dignus  vindice  nodus. 

^  In  Europe,  where  an  accurate  knowledge  of  the  American  state 
of  things  did  not  exist,  it  was,  I  believe,  universally  considered  as 
the  beginning  of  a  new  nobility,  and  pointed  out  as  a  glaring  in- 
consistency. 


AND  SELF-GOVERXMEN'T.  281 

We  have  no  right  of  prhiiogeniturc.'*  This  equality 
has  more  and  more  developed  itself,  and  all  states 
I  believe  have  adopted  the  prineiple  of  universal 
suffrage.  Property  qualification  for  voting  or  for 
being  elected  does  not  exist  any  longer. 

But  here  it  must  be  observed  that,  however  un- 
qualifiedly the  principle  of  political  equality  is 
adopted  throughout  the  whole  country  with  reference 
to  the  white  population,  it  stops  short  with  the  race. 
Property  is  not  allowed  to  establish  any  dilierence, 
but  color  is.  Socially  the  colored  man  is  denied 
equality  in  all  states,  and  politically  he  is  so  in  those 
states  in  which  the  free  colored  man  is  denied  the 
right  of  voting,  and  where  slavery  exists.  I  believe 
I  may  state  as  a  fact  that  the  stanchest  abolitionist, 
who  insists  upon  immediate  manumission  of  all 
slaves,  does  not  likewise  insist  upon  an  immediate 
admission  of  all  the  manumitted  j)opulatiou  to  a 
perfect  political  equality.  In  this,  however,  1  may 
be  mistaken. 

Two  elements  constitute  all  human  jirogress,  his- 
torical development  and  abstract  reasoning.  It  results 
from  the  very  nature  of  man,  whom  God  has  niade 
an  individual  and  a  social  being.  Ilis  historical 
development  results  from  the  continuity  of  society.* 


*  We  can  do  entirely  without  it  as  to  property  in  luml.  Our  nltund- 
ance  of  land  does  not  require  it;  but  there  are  countries  in  whicli 
the  constant  parcelling;  of  land  led  to  such  n  ruinous  subdivision 
that  the  governments  were  obliged  to  establish  anunimuni  beyond 
which  hind  shall  not  be  allowed  to  be  divided,  and  whicli,  tlius  un- 
divided, goes  either  to  the  ohlest  or  the  youngest  of  the  sons. 

'•  This  is  treated  more  fully  in  the  Political  Ethics. 

2-1" 


282  ON  CIVIL  LIBERTY 

Witliout  it,  witliout  traditional  knowledge  and  insti- 
tntions,  without  education,  man  would  no  longer  be 
man ;  without  individual  reasoning,  without  bold 
al^straction,  there  would  be  no  advancement  either. 
Now,  single  men,  entire  societies,  whole  periods  will 
incline  more  to  the  one  or  to  the  other  element,  and 
both  present  themselves  occasionally  in  individuals 
and  entire  epochs  as  caricatures,  One-sidedness  is  to 
be  shunned  in  this  as  in  all  other  cases ;  perfection, 
wisdom,  results  from  the  well-balanced  conjimction 
of  both,  and  I  do  not  know  any  nobler  instance  of 
this  wisdom  than  that  which  is  presented  by  the  men 
of  our  revolution.  They  were  bold  men,  as  I  have 
stated  already ;  they  went  fearlessly  to  work,  and 
launched  upon  a  sea  that  had  as  yet  been  little  navi- 
gated, when  they  proposed  to  themselves  the  esta- 
blishment of  a  republic  for  a  large  country.  Yet 
they  changed  only  what  imperatively  required 
change  ;  what  they  retained  constituted  an  infinitely 
greater  part  than  what  they  changed.  It  does  not 
require  an  extraordinary  power  of  abstraction,  nor 
very  profound  knowledge,  to  imagine  what  must 
have  been  the  consequence,  had  they  upset  the 
whole  system  in  which  they  lived,  and  allowed  their 
ill-will  toward  England,  or  a  puerile  vanity,  to  in- 
duce them  to  invent  an  entirely  new  state  of  things. 
They,  on  the  contrary,  adopted  every  principle  and 
institution  of  liberty  that  had  been  elaborated  by  the 
English.  They  acted  like  the  legislators  of  antiquity. 
Had  they  done  otherwise,  their  constitution  must 
have  proved  a  still-born  child,  as  so  many  other  con- 
stitutions proclaimed  since  their  davs.   Their  absence 


AND  SELF-GOVERNMENT.  283 

of  all  conceit,  and  their  manly  eulniness,  will  forever 
redound  to  their  honor. 

It  seems  to  me  that  while  the  P^nglish  incline 
occasionally  too  much  to  the  historical  element,  we, 
in  turn,  incline  occasionally  too  much  toward  ab- 
straction. 

However  this  may  be,  it  is  certain  that  we  conceive 
of  the  rights  of  the  citizen  more  in  the  abstiaot  and 
more  as  attributes  of  his  humanity.  From  this  lact 
several  features  characteristic  of  our  liberty  naturally 
flow. 

I  have  also  stated  that  our  whole  goveniment  has 
a  more  popular  cast  than  that  of  England,  and  with 
reference  to  this  fact,  as  well  as  to  the  one  mentioned 
immediately  before  it,  I  would  i)OLUt  out  the  fol- 
lowing farther  characteristics  of  American  liberty. 

We  have  established  everywhere  voting  by  ])allot. 
There  is  an  annually  increasing  nimiber  of  memlxjrs 
voting  in  the  English  commons  f<r)r  the  bidlot.  It  is 
desired  there  to  prevent  intimidation.  Probably  it 
woiild  have  that  eflect  in  England,  but  certaitdy  not  in 
such  a  degree  as  they  expect  it.  The  V)allot  does  not 
necessarily  prevent  the  vote  of  a  person  from  being 
known."    Although  the  ballot  is  so  strongly  insisted 


"  Tlicre  is  an  instructive  article  on  voting  in  tlic  E.linburuh  Ue- 
vicw,  of  October,  18-32,  on  Ueprcscntativc  Ucfonn.  The  writer,  who 
justly  thinks  it  all-iinjiortiiut  that  cvci-y  one  who  has  the  right  to 
vote  for  a  member  of  imrliamont  should  vote,  pmimscs  written  votes 
to  be  left  at  the  house  of  every  voter,  tlie  blanltx  to  he  filled  hy  Iiim, 
as  is  now  actually  done  for  parish  elections.  There  existed  written 
votes  in  tiie  early  times  of  New  England,  and  people  were  fined  f.-r 
not  scndiiifr;  them.     It  was  not  necos'siu-y  to  carry  it  personally  to 


284  ON  CIVIL  LIBERTY 

upon  in  America,  it  is  occfisionally  entirely  lost  sight 
of.  "  Tickets"  printed  on  paper  whose  color  indicates 
the  party  which  has  issued  it,  are  the  most  common 
things ;  and,  in  the  place  of  my  residence,  it  happened 
some  years  ago  that  party  feeling  ran  to  an  unusual 
height,  so  much  so  that,  in  order  to  prevent  melan- 
choly consequences,  the  leaders  came  to  an  agree- 
ment. It  consisted  in  this:  that  alternate  hours 
should  be  assigned  to  the  two  parties,  during  which 
the  citizens  of  one  party  only  should  vote.  This 
open  defeat  of  the  ballot  was  carried  out  readily  and 
in  good  faith. 

The  constitution  of  the  United  States,  and  those  of 
all  the  states,  provide  that  the  houses  of  the  legis- 
latures shall  keep  their  journals,  and  that  on  the 
demand  of  a  certain,  not  very  large,  number  of 
members,  the  ayes  and  noes  shall  be  recorded.  The 
ayes  and  noes  have  sometimes  a  remarkable  effect. 
It  is  recorded  of  Philip  the  Fourth,  of  Spain,''  that  he 
asked  the  opinion  of  his  council  on  a  certain  subject. 
The  opinion  was  unanimously  adverse,  whereupon  the 
monarch  ordered  every  counsellor  to  send  in  his  vote 
signed  with  his  name,  and  every  vote  turned  out  to 
be  in  favor  of  the  proposed  measure.  The  ayes  and 
noes  have  unfortunately  sometimes  a  similar  effect 
with  us.  Still,  this  peculiar  voting  may  operate  upon 
the  fearful  as  often  beneficially  as  other-v^dse ;  at  any 


the  poll.  These  written  votes  prevailed  in  the  middle  ages.  For 
this  and  other  subjects  connected  with  elections,  see  the  paper  on 
the  subject  in  the  appendix. 

'  Coxc's  Memoirs  of  the  Bourbons  in  Spain. 


A\D  SELF-GOVERNMENT.  285 

rate,  tho  Americans  believe  tliat  it  is  proper  tlius  to 
oblige  members  to  make  their  vote  knowni  to  tl>e 
people. 

We  never  give  the  executive  the  right  of  dissolving 
the  legislature. 

We  have  never  closed  the  list  of  the  states  com- 
posing the  Union,  in  which  we  differ  from  most  other 
confederacies,  ancient  or  modern ;  we  admit  freely 
those  who  are  foreigners  by  birth  to  our  citizenship, 
and  we  do  not  believe  in  inalienable  allegiance." 

We  allow,  as  it  has  been  seen  already,  no  attainder 
of  blood. 

We  allow  no  ex  post  facto  laws. 

American  liberty  cpntaius  as  one  of  its  character- 
istic elements  the  enacted  or  written  constitution. 
This  feature  distinguishes  it  especially  from  the  Eng- 
lish polity  with  its  accumulative  constitution. 

We  do  not  allow  our  legislatures  to  be  politically 
"omnipotent,"  as,  theoretically  at  least,  the  British 
parliament  is.' 


^  The  character  of  the  English,  and  of  our  allegiance,  is  trenteJ 
at  length  in  the  I'oliticiil  Kthics.  1  there  took  the  ground  that  eten 
English  allegiance  is  a  nntit)nul  one,  whatever  the  language  of  the 
law  books  may  be  to  the  contrary.  Tlie  following  nuiy  ser>-e  as  a 
farther  proof  that  English  allegiance,  after  all,  i>  dissoluble.  It 
appears  from  the  New  England  charter,  granted  by  James  I.,  th»t 
he  claimed,  or  had,  the  right  "to  put  a  person  out  of  hia  nllcginnco 
and  protection."  Page  10,  ('onijiact,  witii  the  Charter  and  Laws  of 
the  Colony  of  New  Plymouth,  &c.,  Uoston,  \bSi'>. 

9  For  the  English  reailer  I  would  add  that  tlio  following  works 
ought  to  be  studied,  or  consulted  on  this  subject:  The  Constitution 
of  the  United  States,  and  the  con.Htitutions  of  the  tliffcrent  states, 
■which  arc  published  from  time   to  time,  collected  in  one  volume ; 


286  ON  CIVIL  LIBERTY 

I  may  add  perhaps,  as  a  feature  of  American 
liberty,  that  the  American  impeachment  is,  as  I  have 
stated  before,  a  political,  and  not  a  penal  institution. 
It  seems  to  me  that  I  am  borne  out  in  this  view  by 
the  Federalist.'" 


the  Debates  on  the  Federal  Constitution ;  The  Federalist,  by  Ham- 
ilton, Madison,  and  Jay;  the  Writings  of  Chief  Justice  Marshall, 
Boston,  1839 ;  Mr.  Justice  Story's  Commentaries  on  the  Constitu- 
tion of  the  United  States  ;  Mr.  Calhoun's  and  Mr.  Webster's  Works ; 
Mr.  Rawle's  work  on  the  Constitution,  and  ISIr.  Frederic  Grimke's 
Considerations  upon  the  Nature  and  Tendency  of  Free  Institutions, 
Cincinnati,  1848. 
">  No.  LXV. 


AND  SELF-GOVERNMENT.  287 


CHAPTER    XX  IT. 

IN   WHAT  CIVIL   IJi;i:i{TV   ('(INSISTS,   I'lloVKD  RV 
("ONTUAKIKS. 

I  HAVE  endeavored  to  give  a  sketch  of  Anirlicaii 
liberty.  It  is  the  liberty  we  pri/e  and  love  tor  a 
hundred  reasons,  and  wliich  avo  would  love  ii'  there 
were  no  other  reason  tlian  that  it  /*•  liberty.  We 
know  that  it  is  the  jiolitical  state  most  befitting  to 
conscious  man,  and  history  as  well  as  our  own  preg- 
nant times  proves  to  us  the  value  oi'  those  guarantees ; 
their  necessity,  if  avc  wish  to  see  our  political  dignity 
secure,  and  their  eftcct  upon  the  stability  of  govern- 
ment as  well  as  on  the  energies  of  the  pcoj)le.  We 
are  proud  of  our  self-government  and  our  love  of  tho 
law  as  our  master,  and  we  cling  the  fa.ster  to  all  these 
ancient  and  modern  guarantees,  the  more  we  observe 
that,  wherever  tho  task  which  men  have  proposed 
to  themselves  is  the  supj)ression  of  liberty,  these 
guarantees  are  sure  to  be  the  first  objects  of  deter- 
mined and  persevering  attack.  It  is  instructive  for 
the  friend  of  freedom  to  observe  how  uniformly  and 
instinctively  the  despots  of  all  ages  and  countries 
have  been  in  their  attacks  upon  the  diftercnt  gua- 
rantees enumerated  in  the  preceding  pages.     Wc  can 


288  ON  CIVIL  LIBERTY 

learn  much  in  all  practical  matters  by  the  rule  of 
contraries.  As  the  arithmetician  proves  his  multi- 
plication by  division,  and  his  subtraction  by  addi- 
tion, so  may  we  learn  what  those  who  love  liberty 
ought  to  prize,  by  observing  what  those  who  hate 
freedom  suppress  or  war  against.  This  process  is 
made  peculiarly  easy  as  well  as  interesting  at  this 
very  period,  when  the  government  of  a  large  nation  is 
avowedly  engaged  in  suppressing  all  liberty  and  in 
establishing  the  most  uncompromising  monarchical 
absolutism. 

I  do  not  know  a  single  guarantee  contained  in  the 
foregoing  pages,  which  might  not  be  accompanied  by 
a  long  historical  commentary  showing  how  necessary 
it  is,  from  the  fact  that  it  has  been  attacked  by  those 
who  are  plainly  and  universally  acknowledged  as  hav- 
ing oppressed  liberty  or  as  having  been,  at  least,  guilty 
of  the  inchoate  crime.  It  is  a  useful  way  to  turn 
the  study  of  history  to  account,  especially  for  the 
youth  of  free  nations.  It  turns  their  general  ardor 
to  distinct  realities,  and  furnishes  the  student  with 
confirmations  by  facts.  We  ought  always  to  remem- 
ber that  one  of  the  most  efficient  modes  of  learning 
the  healthful  state  of  our  body  and  the  salutary  ope- 
ration of  its  various  organs,  is  the  study  of  their  dis- 
eased states  and  abnormal  conditions.  The  pathologic 
method  is  an  indispensable  one  in  all  philosophy  and 
in  politics.  The  imperial  time  of  Rome  is  as  replete 
with  pathetic  lessons  for  the  statesman  as  the  repub- 
lican epoch. 

It  would  lead  me  far  beyond  the  proper  limits  of 
tliis  work,  were  I  to  select  all  the  most  noted  periods 


AND  SELF-GOVERNMENT.  289 

■ 

of  usurpation,  or  those  times  in  which  absolutism, 
whether  monarchical  or  democratic,  has  assumed  the 
sway  over  liberty,  and  thus  to  try  the  gage  of  our 
guarantees.  It  may  be  well,  however,  to  select  a  few 
instances. 

In  doing  so  I  shall  restrict  myself  to  instances 
taken  from  the  transactions  of  modern  nations 
of  our  own  race ;  but  the  student  will  do  well  to 
compare  the  bulk  of  our  liberty  with  the  charac- 
teristics of  ancient  and  modern  despotism  in  Asia, 
and  sec  how  the  absence  of  our  safeguards  has 
there  always  prevented  the  development  of  humanity 
which  we  prize  so  highly.  He  ought  then  to  com- 
pare this  our  own  modem  liberty  with  what  is  more 
particularly  called  antiquity,  and  see  in  what  we 
excel  the  ancients  or  fall  behind  them,  and  in  what 
that  wliich  they  revered  as  liberty  difiered  from 
ours,  lie  ought  to  keep  in  mind  our  guarantees  in 
reading  the  history  of  former  free  states  and  of  the 
processes  by  wliich  they  lost  their  liberty,  or  of  the 
means  to  which  the  enemies  of  liberty  have  resorted, 
from  those  so  masterly  delineated  by  Aristotle  down 
to  Dr.  Francia  and  those  of  our  OAvn  times,  and  he 
ought  again  to  comjiare  our  broadcast  national  liljcrty 
to  the  liberties  of  the  feudal  age.  lie  ought  lastly  to 
present  clearly  to  his  mind  the  psychologic  processes 
by  which  liberty  has  been  lost — by  gratitude,  hero- 
worship,  indolence,  permitting  great  personal  popu- 
larity .to  overshadow  institutions  and  laws,  hatred 
against  opposite  parties  or  classes,  denial  of  pro])er 
power  to  government,  the  arrogation  of  more  and 
more  powei',  and  the  gradual  transition  into  abso- 
VOL.  I. — 25 


290  ON  CIVIL  LIBERTY 

liitism;  by  local  jealousies,  by  love  of  glory  and 
conquest,  by  passing  unwise  laws  against  a  magni- 
fied and  irritating  evil,  which  afterwards  serve  to 
oppress  all,  by  recoiling  oppression  of  a  part,  by 
poverty  and  by  worthless  use  of  wealth,  by  sensu- 
ality and  want  of  general  virtue. 

It  may  not  be  amiss  to  smgle  out  the  following 
cases. 

Liberty  of  communion  is  one  of  the  first  requisites 
of  freedom.  Wherever,  therefore,  a  government 
struggles  against  liberty,  this  communion  forms  a 
subject  of  peculiar  attention.  Not  only  is  liberty  of 
the  press  abolished,  but  all  communion  is  watclied 
over  by  the  power-holder,  or  suppressed  as  far  as 
possible.  The  spy,  the  mouchard,  the  dilater,  the 
informer,  the  sycophant,  are  sure  accompaniments 
of  absolutism.^  The  British  administration  under 
Charles  the  Second  and  James  the  Second  looked 
with  a  jealous  eye  on  the  "  coffee-houses,"  and  occa- 
sionally suppressed  them,  and  one  of  the -first,  things 
done  by  the  French  minister  of  pohce,  after  the 
second  of  December,  was  to  close  a  nmnber  of 
"cabarets"  at  Paris,  and  to  put  all  throughout 
France  under  surveillance.  This  may  become  neces- 
sary under  pressing  circumstances,  which  may  place 
a  government  in  the  position  of  a  general  in  a 
beleaguered  city.  All  that  is  necessary  to  state  here 
is  that  it  is  not  liberty,  but  the  contrary,  and  that  if 
the  measure  is  adopted  as  a  permanent  one^  it  is 


'  Much  that  relates  to  the  history  of  the  spy  and  informer,  in 
ancient  and  modern  times,  may  be  found  in  the  secondvolume  of 
Political  Ethics,  where  the  citizen's  duty  of  informing  is  discussed. 


AND  SELF-GOVERNMENT.  291 

sheer  despotism.  So  soon  as  Louis  Napoleon  had 
placed  himself  at  the  head  of  an  absolute  govern- 
ment, he  not  only  abolished  the  liberty  of  the  press; 
he  went  much  farther,  as  we  have  seen;  he  placed  the 
printing  presses  themselves  and  the  sale  of  type 
under  the  police,  and  ordered  that  no  press  with  the 
necessary  printing  materials  should  be  sold  or  change 
hands  mthout  previous  information  being  given 
to  the  police. 

While  it  is  a  characteristic  of  our  liberty  tliat  the 
public  funds  are  under  the  peculiar  guardianship  of 
the  popular  house  of  the  legislature,  and  that  short 
appropriations  are  made  for  distinct  purposes,  espe- 
cially for  the  army  and  navy,  all  governments  hostile 
to  liberty  endeavor  to  rule  without  appropriations,  or, 
if  this  is  not  feasible,  by  having  the  appropriations 
made  for  a  long  term,  and  not  for  detailed  purposes. 
The  last  decree  of  Napoleon  the  Third,  relating  to 
this  subject,  is  that  the  legislative  corps  must  vote 
the  budget  of  each  ministry  en  hloc^  that  is  in  a 
lump,  and  either  wholly  reject  or  adopt  it,  without 
amendment.  English  history  furnishes  a  long  com- 
mentary on  this  point  of  appropriations.  Charles 
the  First  lost  his  head  in  his  struggle  for  a  govern- 
ment without  parliament,  which  then  meant,  in  a 
great  measure,  without  regular  appropriations,  or  the 
assumption  of  ruling  by  taxation  on  royal  authority. 
Wherever  on  the  European  continent  an  endeavor 
has  been  shown  to  establish  a  constitutional  govern- 
ment, the  absolutists  have  complained  of  the  "  inde- 
cency" of  making  a  government  annually  "  beg"  for 
supplies. 


292  ON  CIVIL  LIBERTY 

Liberty  requires  tlie  supremacy  of  the  law ;  the 
supremacy  of  the  law  requires  the  subordination  of 
the  army  to  the  legislature  and  the  whole  civil 
government.  The  Declaration  of  Rights  enumerates, 
as  one  of  the  proofs  that  James  the  Second  had 
endeavored  "  to  subvert  and  extirpate  the  laws  and 
liberties"  of  England,  his  raising  and  keeping  a 
standing  army  without  consent  of  parliament,  wliile 
all  governments  reluctantly  yielding  to  the  demands 
of  liberty  have  struggled  to  prevent  at  least  the 
obligation  of  the  army  to  take  the  oath  of  fidelity 
to  the  constitution.  The  army  is  studiously  sepa- 
rated from  the  people  and  courted  as  peculiarly  allied 
to  the  prince.  Napoleon  the  First  treated  the  army 
as  the  church  was  often  treated  in  the  middle  ages — 
the  main  body  in  the  state ;  and  Napoleon  the  Third 
lately  said  in  a  solemn  speech  that  he  desired  to 
present  the  new  empress  to  the  people  and  the  army, 
as  if  it  formed  at  least  one-half  of  the  state  and  were 
separate  from  the  people.  When  he  gave  eagles  to 
the  whole  army  at  what  is  called  the  fete  of  the 
eagles,  in  1852,  he  said:  "The  history  of  uations  is 
in  great  part  the  history  of  armies,"  and  continued  in 
a  strain  sounding  as  if  it  belonged  to  the  times  of 
the  mio;ration  of  nations.^ 


2  I  quote  the  whole  passage  of  this  stupendous  allocution,  -which 
no  historian  or  political  philosopher,  had  he  discovered  it,  as  Cuvier 
found  and  construed  remains  of  animals,  would  have  assigned  to 
the  middle  of  the  nineteenth  century.  What  becomes  of  England 
and  the  United  States  if  the  essence  of  history  does  not  lie  in  the 
development  of  the  nation  and  especially  of  its  institutions  ?  The 
following  arc  the  exact  words : 


AND  8ELF-GUVKRNMENT.  'J9;J 

The  supremacy  of  the  law  is  au  elomcntary  iv<|ui- 
site  of  liberty.  All  absolutism  spurns  the  idea,  and 
has  a  peculiar  dislike  of  the  idea  of  fundamental 
laws.  Aristotle  enumerates  as  the  fourth  species  of 
government  that  in  which  the  law  is  not  the  supreme 
master,  but  the  multitude ;  James  the  Second  claimed 
and  acted  on  the  dispensing  power,  and  Louis  Na]>o- 
leon  declared,  when  yet  president  under  the  re[)ub- 
lican  constitution,  which  prohibited  his  re-election, 
that  if  the  people  wanted  him  to  continue  in  oflice, 
he  should  do  it,  and  all  his  adherents  declared  that 
the  people  being  the  masters  could  do  a.s  they 
liked,  which  reminds  us  of  the  Athenians  who  im- 
patiently exclaimed:  "Can  we  not  do  what  we  list?'' 
when  reminded  that  there  was  a  law  against  what 
they  were  going  to  do. 

The  division  of  power,  whieli  was  already  observed 
as  an  important  point  in  all  government  by  "the 
master  of  all  that  know,"  is  invariably  broken  down 
as  far  as  possible  by  the  absolutists.  The  judiciary 
is  interfered  with  whenever  its  slow  procedure  or  its 
probable  results  irritate  the  power-holder.  The  his- 
tory of  all  nations  from  the  earliest  times  to  Na})0- 


"  Soldiers,  the  liistory  of  nations  is  in  great  part  the  history  of 
armies.  On  their  success,  or  on  tlicir  i-evcrscs,  ilcpcmls  the  fate  of 
civilization  and  of  country.  When  they  are  vanquished,  there  is 
either  invasion  or  anarchy ;  when  ^•icto^iou.'',  glory  or  oi-dcr. 

"In  consequence,  nations,  like  armies,  pay  a  religious  vcncrntion 
to  the  emblems  of  military  honor,  which  sum  up  in  tliemsclves  a 
whole  past  existence  of  .strnaglcs  anil  of  triumphs. 

"  The  Roman  ea;j;lc,  adopt^il  hy  the  Kinpcror  Napoleon  at  tlie 
commencement  of  the  present  century,  was  the  most  striking  signi- 
fication of  the  regeneration  and  grandeur  of  Kruiici- :"  and  so  on. 


294  ON  CIVIL  LIBERTY 

Icon  the  Third's  taking  the  trial  on  the  legality  of 
the  Orleans'  spoliation  out  of  the  hands  of  the  ju- 
diciary, proves  it  on  every  page. 

Self-government,  general  as  well  as  local,  is  indis- 
pensable to  our  liberty,  but  interference  and  dicta- 
tion are  the  essence  of  absolutism.  Monarchical  ab- 
solutisms presume  to  do  everything  and  to  provide 
for  everything,  and  Eobespierre,  in  his  "  great 
speech"  for  the  restoration  of  the  supreme  being, 
said:  The  function  of  government  is  to  direct  the 
moral  and  physical  forces  of  the  nation.  For  this 
purpose  the  aim  of  a  constitutional  government  is 
the  republic.^ 

Liberty  requires  that  every  one  should  be  judged 
by  his  common  court.  All  despots  insist  on  extra- 
ordinary courts,  courts  of  commission,  and  an  easy 
application  of  martial  law. 

Forcible  expatriation  or  deportation  "  beyond  the 
seas"  by  the  executive  is  looked  upon  with  peculiar 
horror  by  all  freemen.  The  English  Vv^ere  roused  by  it 
to  resistance  ;  Napoleon  the  Third  began  his  absolute 
reigTL  Avith  exile  and  deportation.  So  did  the  Greek 
factions,  because  no  "opposition"  was  known,  inva- 
riably banish  their  opponents  when  they  had  the 
power  of  doing  so.  "With  them  it  was  the  bungling 
business  of  factions ;  moderns  knoAV  better,  and  if 
they  return  to  it,  it  is  because  despotism  is  a  thing 
full  of  fear  and  love  of  show. 

How  great  an  offence  it  is  to  deprive  a  man  of  his 


^  The  words  of  Robespierre  are  perfectly  clear  as  an  illustration 
of  vrhat  has  been  stated  in  the  text ;  otherwise,  I  own,  the  sense  is 
not  perfectly  apparent. 


AND  SELF-GOVERNMENT.  295 

lawful  court  and  to  judge  liiin  by  aui,dit  else  tliaii  by 
the  laws  of  the  land,  now  in  the  middle  of  the  nine- 
teenth century,  ^nll  appear  the  more  forcibly,  if  the 
reader  Avill  bring  to  his  mind  that  passage  of  Magna 
Cliarta  which  appeared  to  Chatham  worth  all  the 
classics,  and  if  he  will  remember  the  year  when  tlie 
Great  Charter  was  carried.  The  passage,  so  preg- 
nant to  the  mind  of  Chatham,  is  this : 

"  No  freeman  shall  be  taken,  or  imprisoned,  or  l^o 
disseised  of  his  freehold  or  liberties,  or  free  customs, 
or  be  outlawed  or  exiled,  or  any  otherwise  destroyed  ; 
nor  will  we  (the  king)  pass  upon  him,  nor  condemn 
him,  but  by  lawful  judgment  of  his  peers,  or  by  the 
law  of  the  land.  We  will  sell  to  no  man,  we  will 
not  deny  or  defer  to  any  man,  justice  or  riglit."' 

Publicity  is  a  condition  without  which  liberty 
cannot  live.  The  moment  it  luid  been  concluded  l)y 
the  present  government  of  France  to  root  out  civil 
freedom,  it  was  ordained  that  neither  the  remarks  of 
the  members  of  the  legislative  corps,  nor  the  jtlead- 
ings  in  the  courts  of  justice,  should  be  reported  in 
the  papers.  Modern  political  publicity,  however, 
consists  chiefly  in  publication  through  the  papers. 
We  acknowledge  this  practically  by  the  fact  tliat, 
although  our  courts  are  never  closed,''  yet,  for  par- 
ticular reasons  arising  out  of  the  case  under  consi- 
deration, the  publication  of  the  proceedings  is  some- 
times prohibited  by  the  judge  until  the  clo.se  of  tho 
trial,  but  never  beyond  it. 


*  Very   scamlalous  Judicial  cases,    olTensiNc  to   public  nvral^ 
nrc,  in  Franco,  conductcil  wilh  closed  doors. 


296  ON  CIVIL  LIIJEKTY 

Liberty  stands  in  need  of  the  legal  precedent,  and 
Charles  the  First  pursued  Cotton  because  he  fur- 
nished Pym  and  other  patriots  with  precedents,  while 
the  present  French  government  has  excluded  in- 
struction in  history  from  the  plan  of  general  educa- 
tion. History,  in  a  certain  point  of  view,  may  be 
called  the  great  precedent.  History  is  of  all  branches 
the  most  nourishing  for  public  life  and  liberty.  It 
furnishes  a  strong  pabulum  and  incites  by  great  ex- 
amples removed  beyond  all  party  or  selfish  views. 
The  favorite  book  of  Chatham  was  Plutarch,  and  his 
son  educated  himself  upon  Thucydides.^  The  best 
historians  have  been  produced  by  liberty,  and  the 
despot  is  consistent  when  he  wishes  to  shackle  the 
noble  muse. 

Sincere  civil  liberty  requires  that  the  legislature 
should  have  the  initiative.  All  governments  reluctant 
to  grant  full  liberty  have  withheld  it,  and  one  of  the 
first  things  decreed  by  Louis  Napoleon  after  the 
second  of  December  was  that  the  "  legislative  corps" 
should  discuss  such  propositions  of  laws  only  as  the 
council  of  state  should  send  to  it.  The  council  of 
state,  however,  is  a  mere  body  of  officers  appointed 
and  discharged  at  the  will  of  the  ruler. 

Liberty  requires  that  government  do  not  form  a 
body  permanently  and  essentially  separated  from  the 
people ;  all  modern  absolute  rulers  have  resorted  to 
a  number  of  distinctions — titles,  ribbons,  orders,  pea- 
cock feathers  and  buttons,  uniforms,  or  whatever  other 


So  bishop  Tomlin'son  tells  xis  in  the  Life  of  his  pupil. 


AND  SELF-GOVERNMENT.  21)  / 

means  of  separating  indivitTuals  from  tlic  people  at 
large  may  seem  expedient. 

Liberty  requires  the  trial  by  jury.  Consequently 
one  of  tbe  first  attaeks  which  arbitrary  power  makes 
upon  freedom  is  regularly  directed  against  that  trial. 
There  is  now  a  law  in  preparation  in  France,  of 
which  the  outlines  have  been  published,  and  which 
will  place  the  jurors  under  the  almost  exclusive  in- 
fluence of  the  government. 

Liberty  requires,  as  we  have  seen,  a  candid  and 
well-guaranteed  trial  for  treason ;  all  desjiotic  govern- 
ments, on  the  contrary,  endeavor  to  break  down  these 
guarantees  in  particular,  and  either  to  arrogate  the 
power  of  condemning  political  oftenders  without  trial, 
or  at  least  to  strip  the  trial  for  treason  of  its  best 
guarantees. 

But  we  might  go  through  the  whole  list  of  safe- 
guards and  principles  of  liberty,  and  find  that  in  each 
case  absolutism  does  the  opposite. 

If  the  American  peruses  the  Declaration  of  Inde- 
pendence, he  will  find  there,  in  the  complaints  of  our 
forefathers,  almost  a  complete  list  of  tliose  rights, 
privileges  and  guarantees  which  they  held  dearest 
and  most  essential  to  liberty ;  for  they  believed  that 
nearly  every  guai'antec  had  been  assailed. 


298  ON  CIVIL  LIBERTY 


CHAPTEE    XXIII. 

GALLICAN  LIBERTY.     SPREADING  OF  LIBERTY. 

Having  considered  Anglican  liberty,  it  will  be 
proper  for  us  to  examine  the  French  type  of  civil 
freedom,  or  Galilean  liberty. 

In  speaking  here  of  Galilean  liberty,  we  mean,  of 
course,  that  liberty  which,  either  in  reality,  if  we 
shall  find  that  at  any  period  it  has  taken  actual  root, 
or  in  theory,  if  it  have  remained  such,  and  never  prac- 
tically developed  itself,  is  characteristically  French. 
Liberty  has  sprouted  in  France  as  in  other  coun- 
tries. People  have  felt  there,  as  all  over  Europe, 
that  the  administration  of  justice  ought  to  be  inde- 
pendent of  the  other  branches  of  government.  The 
separation  of  the  three  great  functions  of  government 
was  proclaimed  by  the  first  constituent  assembl}''. 
But  the  question  here  is,  whether  any  of  these  or 
other  endeavors  to  establish  liberty  have  been  con- 
solidated into  permanent  institutions,  whether  they 
have  been  allowed  to  develop)  themselves,  and  whether 
they  were  or  are  peculiar  to  the  Galilean  tribe,  or 
were  adopted  from  another  system  of  developed 
civil  liberty,  as  we  adopt  the  whole  or  parts  of  an 
order  of  architecture  or  a  philosophical  system ;  and 


AND  SELF-GOVERNMENT.  299 

if  we  find  no  sucli  institutions  or  guarantees  pecu- 
liar to  the  French,  whether  there  be  a  general  idea 
and  conception  of  liberty  which  pervades  all  France 
and  is  peculiar  to  that  country. 

In  viewing  the  French  institutions,  which  have 
been  intended  for  the  protection  of  individual  rights 
or  the  preservation  of  liberty,  I  can  discover  none 
which  has  had  a  permanent  existence,  except  the 
court  of  cassation  or  quashing.  It  is  the  highest 
court  of  France,  possessing  the  power  of  annulling 
or  breaking'  the  judgments  of  all  other  courts  of 
justice,  whether  in  civil  or  criminal  matters,  on 
account  of  faults  and  flaws  in  the  judicial  forms  and 
procedure,  or  of  misapplications  of  the  existing  law. 
It  has  no  power  to  examine  the  verdict.  It  resembles, 
therefore,  the  court  of  Westminster,  in  England,  when 
the  assembled  judges  hear  questions  of  law,  or  our 
supreme  court  of  the  United  States  on  similar  occa- 
sions, and  the  supreme  courts  or  courts  of  apj)eal  or 
error  in  the  different  states.  The  court  of  cassation 
must  necessarily  sometimes  judge  of  certain  ])rocc- 
dures  of  the  government  against  individuals,  and 
dechire  whether  individual  rights,  publicly  gua- 
ranteed, have  been  invaded.  Thus  it  showed  its 
power  to  some  extent  when  Paris  was  decltu'ed  in  a 
state  of  siege,  and  the  whole  city  was  under  martial 
law.  But  the  high  attribute  of  pronouncing  ui)<>n 
the  constitutionality  of  the  laws  themselves,  which 
we  revere  in  our  supreme  courts,  does  not  l)elong  to 
it,  nor  can   its  power  be  vigorously  and   broadly 

'  Casser  is  the  French  for  breaking ;  hcuoc  tho  name  of  the  cmn  t. 


300  ON  CIVIL  LIBERTY 

exercised  in  a  conflict  with  the  supreme  power,  since 
tins  power  bears  down  ever3''tliing  in  a  country  so 
vast  and  yet  so  centralized  as  France  is,  and  in  wliich 
tlie  principle  of  development,  independent  of  the 
executive  or  central  power,  is  not  acknowledged  in 
the  different  institutions.  The  court  of  cassation  has 
at  the  same  time  a  supervisory  authority  over  the 
judges  of  other  courts,  and  can  send  them  before  the 
keeper  of  the  seals  (the  minister  of  justice),  to  give 
an  account  of  their  conduct.  It  is  likewise  an  object 
of  the  court  of  cassation  to  keep  the  application  of 
the  law  uniform  in  the  different  parts  of  the  country. 
This  is  a  necessary  effect  of  its  power  to  quash 
judgments. 

The  institution  of  the  justice  of  the  peace  ought 
to  be  mentioned  here,  although  it  can  only  be  con- 
sidered as  indu-ectly  connected  with  liberty.  The 
French  justice  of  the  peace  differs  from  the  English 
officer  of  the  same  name  in  this,  that  his  function  is 
exclusively  of  a  conciliatory  character.  Courts  of 
conciliation  have  existed  in  many  countries,  and  long 
before  the  present  justices  of  the  peace  were  esta- 
blished in  France  by  the  first  constituent  assembly ; 
but  as  we  see  them  now  there,  they  must  be  called  a 
French  institution.  It  has  proved  itself  in  France, 
as  well  as  in  other  countries,  of  the  highest  value  in 
preventing  litigation,  with  all  the  evils  which  neces- 
sarily attach  themselves  to  it.^ 


2  Courts  of  conciliation  have  attracted  renewed  attention  in  Eng- 
land since  lord  Brougham's  proposition  of  an  act  for  the  Farther 
Cheapening  of  Justice,  in  May,  1851.  An  instructive  article  on  this 
important  subject,  and  the  excellent  effects  these  courts  have  pro- 


AND  SELF-GOVERNMENT.  301 

No  one,  I  suppose,  Avould  expect  the  senate,  first 
established  by  Napoleon  the  First,  and  then  called 
conservative  senate,  that  is  the  senate  whose  nominal 
duty  it  was  to  conserve  the  constitution,  and  now 
re-established  by  Napoleon  the  Third,  to  be  enu- 
merated as  an  institution  for  the  support  of  liberty. 
It  has  no  more  connection  with  liberty  than  the 
Roman  senate  had  under  the  later  emperors.  Its 
very  origin  would  lead  no  one  to  expect  in  it  a  gua- 
rantee of  liberty.  On  the  contrary,  the  French  senate 
has  been  a  great  aid  to  imperial  absolutism,  by  giving 
to  comprehensive  measures  of  monarchical  despotism 
the  semblance  of  not  having  originated  with  the 
absolute  monarch,  or  of  having  received  the  counte- 
nance of  a  high  and  numerous  political  body.  In 
this  respect  the  French  senate  seems  to  me  worse 
than  that  of  Itussia.  The  Russian  senate  is  nothing 
but  a  council,  leaving  all  power  and  responsibility 
with  the  czar,  in  api)carance  as  well  as  in  reality. 

That  which  after  careful  examination  must  be  ]>ro- 
nounced  to  be  Gallican  liberty,  is,  I  take  it,  the  idea 
of  equality  founded  upon  or  acting  through  universal 
suffrage,  or,  as  it  is  frequently  called  by  the  French, 
"the  undivided  sovereignty  of  the  people"  with  an 
uncompromising  centralism.  As  it  is  necessarily  felt 
by  many,  that  the  rule  of  universal  suffrage  cannot 
practically  mean  anything  else  than  the  rule  of  the 
majority,  liberty  is  believed  in  France,  as  has  been 
said,  to  consist  in  the  absolute  rule  of  the  majority.' 


duccd  in  many  conrtrics,  shown  hy  official  statistics,  can  lu-  f  ■mil 
in  tlic  German  Stmit-s-Lcxicon,  ad  vcrbum  Frie<len.sgcriclit. 
'  I  have  given  my  views  on  tlic  suhjcct  of  tlic  nature  "i 
VOL.  L— 2G 


802  ON  CIVIL  LIBERTY 

Every  one  wlio  has  steadily  followed  the  discus- 
sions of  the  late  constituent  and  national  assemblies, 
who  has  resolutely  gone  through  the  discussions  of 
the  first  consiiiuente^  and  studied  the  history  of  the 
revolution,  and  who  is  fairly  acquainted  with  French 
literature,  will  agree,  I  trust,  that  the  idea  of  Galilean 
liberty  has  been  correctly  stated.  There  are  many 
Frenchmen  indeed  who  know  that  this  is  not  liberty, 
that  at  most  it  can  only  be  a  means  to  obtain  it, 
but  we  now  speak  of  the  conception  of  liberty  pecu- 
liar to  the  French  school. 

Institutions,  such  as  we  conceive  their  necessary 
character  to  be,  that  is  establishments  with  the  im- 
portant clement  of  self-government,  and  of  a  system 
of  guarantees  beyond  the  reach  of  daily  change,  do 
not  enter  as  necessary  elements  into  the  idea  of  Galil- 
ean liberty.  Self-government  is  sought  for  in  the 
least  impeded  rule  of  the  majority.  It  has  been 
seen,  however,  that,  according  to  the  Anglican  view, 
the  question  who  shall  rule  is  an  important  question 
of  liberty  indeed,  but  only  one  about  the  means ;  for 
if  the  ruler,  whoever  he  be,  deprives  the  ruled  of 
liberty,  there  is  of  course  no  liberty.  A  suicide  does 
not  the  less  cease  to  live  because  he  kills  himself,  and 
two  game  fowls,  nearly  matched,  as  the  parties  in  a 
nation  may  be,  do  not  symbolize  liberty,  because  at 
one  time  the  one  may  be  uppermost,  and  at  another 
time  the  other. 


reignty  and  tlie  way  it  acts,  at  great  length  in  the  first  Tolume  of 
the  Political  Ethics.  If  I  have  not  succeeded  there  in  mastering 
the  subject,  I  should  not  be  able  to  do  it  here ;  if  I  have  succeeded, 
I  cannot  in  fairness  repeat  a  long  discussion. 


A^^D  SELF-GOVERNMENT,  303 

There  seems  to  be  in  France  a  constant  confusion 
of  equality  and  democracy  on  tlie  one  Land,  and  of 
democracy  and  liberty  on  the  other ;  now,  although 
equality  largely  enters  as  an  element  in  all  liberty, 
and  no  liberty  can  be  imagined  without  a  democratic 
element,  equality  and  democracy  of  themselves  are 
far  from  constituting  liberty.  They  may  be  the 
worst  of  despotisms :  the  one  by  annihilating  indi- 
viduality, as  the  communist  strives  to  do ;  the  other 
— if  it  means  democratic  absolutism — by  being  real 
sweeping  power  itself — not  power  lent,  as  that  of  the 
monarch  always  mnst  be — power  without  personal 
responsibility.  It  acts ;  but  where  is  the  actor,  who 
is  responsible,  who  can  be  made  responsible,  who 
will  judge? 

It  is  with  reference  to  this  rule,  and  this  mistaken 
view  of  liberty,  that  one  of  their  -wisest,  best,  and 
most  liberty-loving  men,  Mr.  Royer  Collard,  has 
said  :■*  "  It  is  nothing  but  a  sovereignty  of  brute 
force,  and  a  most  absolute  form  of  absolute  power. 
Before  this  sovereignty,  without  rule,  without  limit, 
without  duty  and  without  conscience,  there  is  neither 
constitution  nor  law,  neither  good  nor  evil,  nor  past 
nor  future.  The  will  of  to-day  annuls  that  of  yester- 
day, without  engaging  that  of  to-morroAV.  The  pre- 
tensions of  the  most  capricious  and  most  extravagant 
tyranny  do  not  go  so  far,  because  they  arc  not  in 
the  same  degree  disengaged  from  all  responsibility." 

Where  any  one,  or  any  two,  or  any  tliree,  or  any 
thousand,  or  any  million  can  do  what  they  have  the 
power  to  do,  there  is  no  liberty.     Arbitrary  power 


'  Roycr  CollanVa  Opinion  of  October  4,  18.11. 


30-i  ON  OlVir.  L]J3ERTY 

does  not  become  less  arbitrary  because  it  is  the 
united  power  of  many. 

Napoleon  said  :  "  The  Frencb  love  c(|uality ;  they 
care  little  for  liberty."^  Napoleon  certainly  mistook 
the  French,  and  mankind  in  general,  very  seriously 
in  some  points,  as  all  men  of  his  kind  do ;  there  are 
some  entire  instincts  wanting  in  them ;  but  we  fear 
that  he  was  right  in  this  saying  with  reference  to  a 
large  part  of  the  French,  Present  events  seem  to 
prove  it. 

This  equality  is  again  very  generally  mistaken 
for  uniformity,  so  that  it  would  naturally  lead  of 
itself  to  centralization,  even  if  the  French  had  not 
contracted  a  real  passion  for  centralization  ever 
since  the  reigns  of  Richelieu  and  Louis  the  Four- 
teenth.  It  has  increased  with  almost  every  change 
of  government.  It  is  the  love  of  power  carried  into 
every  detail,  and  therefore  the  opposite  of  what  we 
call  self-government  ;^  it  is  the  exceeding  partiality 
of  the  French  for  logical  neatness  and  consistency  of 


5  Words  spoken  to  lord  Ebringtou  iu  his  exile  on  the  island  of 
Elba. 

^  I  have  given  some  remarkable  instances  of  interference  on  the 
part  of  modern  absolute  governments,  in  the  Political  Ethics.  I 
shall  add  the  following  recent  instance :  I  am  sure  that  no  one 
accustomed  to  Anglican  self-govei'nment  imagines  such  details  as 
trivial,  however  "well  he  may  be  acquainted  with  the  fact  in  general, 
that  government  in  those  countries  tries  to  guide,  direct,  manage, 
initiate  and  complete  everything  that  seems  of  any  importance  to 
it.  Some  yeai's  ago  a  German  king  ironically  called,  in  a  throne 
speech,  constitutions  Paper  Providences.  The  cxj^ression  was  every 
way  most  unfortunate.  It  seems  to  me  that  it  is  these  very  govern- 
ments of  centralized  mandarinism  that  play  at  providence,  iu  which 


AND  SELF-GOVERNMENT.  305 

form,  strikingly  manifested  in  the  fact  that  the  word 
logical  is  now  universally  used  in  French  for  consist- 
ency of  action  or  natural  sequence  of  changes — it  is 
this  mathematical  enthusiasm,  if  the  expression  be 
permitted,  applied  to  the  vast  field  of  political  practice. 
It  seems  that  we  can  explain  the  cry  of  Rdpub- 
lique  democratique  et  sociale,  so  often  repeated  by 
the  most  advanced  of  the  democrats  during  the  late 
government  without  a  king,  only  on  the  ground  of 
equality  being  considered  the  foundation  of  all 
liberty.    Indeed  it  is  considered  by  many  a  requisite 


they  closely  resemble  the  communists,  as  indeed  all  absolutism 
contains  a  strong  clement  of  communism. 

The  following  is  taken  from  the  Paris  Monitcur,  the  French 
official  paper,  or  organ  of  government,  in  October,  1852.  I  do  not 
give  the  entire  decree,  but  the  principal  articles : 

There  will  be  published,  under  the  care  of  tlie  minister  of  public 
insti'uction,  a  general  collection  of  the  popular  poetry  of  France, 
either  to  be  found  in  manuscript  in  the  libraries  or  transmitted  by 
the  successive  memories  of  generations. 

The  collection  of  the  popular  poetry  of  France  will  consist  of: 

Religious  and  warlike  songs. 

Festive  songs  and  balhuls. 

Historical  recitals,  legends,  tales,  satirical  songs. 

The  committee  of  language,  history  and  the  arts  of  France  con- 
nected with  the  ministry  of  public  instruction  is  charged  with  the 
selection  of  all  pieces  sent  for  inspection,  and  to  determine  which 
are  to  be  received,  to  regulate  them,  and  give  the  necessary  com- 
mentaries. 

A  medal  is  to  be  given  to  tliosc  persons  who  by  tlieir  discoveries 
and  researches  particularly  contribute  to  enrich  tJio  collection, 
which  will  be  called  IWcueil  des  Po(;sies  Populaires. 

It  is  unnecessary'  to  remind  the  reader  tliat  if  this  undertaking 
has  been  dictated  by  any  desire  of  promoting  literuture,  a  iiolitical 
motive  has  been  at  least  equally  strong,  according  to  tlic  did  say- 
ing: Give  me  tlio  ballad  making,  and  1  will  riilo  iIk-  pooi.lc, 
2<)^ 


oO()  ON  CTVlIi  LIBERTY 

wliicli  lies  beyond  liberty,  and  the  banners  of  social- 
ists bore  the  motto  Equality  and  Fraternity,  or 
Equality,  Fraternity,  Industry,  the  word  Liberty 
having  been  altogether  dropped  from  that  once 
worshipped  legend:  Liberty,  Fraternity,  Equality. 
I  have  never  been  able  to  find  an  explanation  of  the 
watchword.  Democratic  and  Social  Kepublic,  given 
by  those  who  used  it,  but  it  seems  to  bear  no  other 
interpretation  than  this:  Democratic  republic  sig- 
nifies that  republic  which  is  founded  upon  the  total 
political  equality  of  its  members,  carried  to  its  last 
degree,  and  social  republic  must  mean  a  republic 
based  on  equality  of  social  condition.  Whether  this 
be  possible,  or  desirable  if  it  were  possible,  cannot 
occupy  us  at  present.  The  frequent  use  of  this 
term  by  a  very  large  part  of  the  French  nation  has 
been  mentioned  here  as  one  of  the  evidences  show- 
ing the  prevailing  love  of  mere  equality  among  the 
French. 

Still,  it  is  not  easy  to  say  what  the  French  exactly- 
mean  by  equality,  or  what  Napoleon  meant  by  it, 
when,  at  St.  Helena,  he  said  that  he  had  given  equal- 
ity to  the  French,  and  that  this  was  all  he  could 
give  them,  but  that  his  son  would  have  given  them 
liberty.  How  he  knew  that  his  son  would  have 
done  it,  we  certainly  do  not  know;  but  how  did 
he  give  them  equality,  when  it  was  he  who  re- 
established the  ancient  orders  of  nobility  ?  So  there 
are,  in  spite  of  all  the  love  of  equalitv,  no  people 
who  more  universally  love  uniforms  and  an  order 
with  a  ribbon,  than  the  French.  This  inconsistency 
is  a  political  misfortune.     In  theory,  equality  and 


AND  SELF-GOVERNMENT,  307 

democracy,  carried  to  tbe  utmost,  are  demanded, 
wliile  the  habits,  tendencies,  and  desires  of  the  peo- 
ple have  a  different  bent.  There  is  in  this  respect, 
it  seems,  an  intellectual  and  psychical  dualism  with 
antagonistic  elements  in.  France,  similar  to  that 
which  we  frequently  observe  in  individuals  in  re- 
gard to  liberty  and  despotism,''' 

It  is  evident  how  nearly  allied  tliis  desired  equal- 
ity and  uniformity,  together  with  universal  but  un- 
institutional  suffrage,  and  that  kind  of  sovereignty 
which  is  in  addition  confounded  with  absolute  power, 
are  to  those  political  extravagances  which  strike 
our  eyes  in  present  France, 

They  are  the  natural  effects  of  the  one  or  the  other, 
strictly  carried  out,  however  inconsistent  they  may 
appear  with  oae  another.  Equality  absolutely  car- 
ried out  leads  to  communism  ;  the  idea  of  undivided 
sovereignty  leads  to  Mr.  Girardin's  conception  of 
having  no  legislature,  no  division  of  power — nothing 
but  a  succession  of  popular   sultans ;    the   idea  of 


^  Nothing  is  more  common  than  men  witli  a  ileciJed  intellectual 
bent  towards  freedom  and  an  equally  decided  jisycliical  inclination 
towards  a1).solutism.  Their  intellect  admires  the  grandeur  of 
liberty,  their  reason  acknowledges  the  principles  of  justice;  thoir 
desires  arc  for  free  action,  and  yet  tlieir  souls  resent  every  opposi- 
tion. They  appear,  therefore,  often  as  hypocrites,  without  being 
such  in  r,eality.  There  is  a  dualism  within  them  whose  two  ele- 
ments are  at  war,  very  similar  to  that  which,  witliout  liypocrisy, 
makes  many  persons  sincerely  preach  peace  and  charity  abroad, 
but  act  at  home  as  domestic  tyrants. 

History  is  full  of  .such  characters,  and  we  have  had  an  exJiibition 
of  it  in  one  of  our  presidents.  Happily  our  in.stitutional  system 
did  nut  allow  a  vei'y  wide  l>lay  of  such  a  dinpo.sitinn. 


308  ON  CIVIL  LIBERTY 

seeking  'all  liberty  in  universal  suffrage  alone  leads 
witli  the  greatest  ease  to  a  Napoleon — a  transfer  of 
everything  to  one  man,  and  of  all  future  generations 
to  his  deseendants,  thus  actually  realizing  the  fearful 
theory  of  Hobbes ;  and  the  absence  of  a  love  of  insti- 
tutions leads  to  a  remarkable  tendency  to  worship 
one  man,  to  centralization,  or,  in  some  cases,  to  the 
very  opposite — a  desire  to  abolish  all  government, 
and  establish  the  "sovereignty  of  the  individual." 
All  extremes  in  politics  meet. 

There  is  no  greater  error  than  the  idea  of  making 
the  vote  or  election  the  sole  basis  of  liberty — of  be- 
lieving that,  with  the  establishment  of  an  extensive 
or  universal  suffrage,  we  found  liberty,  however  true 
it  is  that  liberty  stands  in  need  of  election.  Abso- 
lutism may  rest  on  this  as  on  any  other  basis.  The 
deys  of  Algiers  were  elective,  but  once  elected  they 
were  unbounded  masters,  in  the  Oriental  sense  of  the 
term.  The  generals  of  nearly  all,  I  believe  of  all, 
the  monastic  orders  are  elective,  but,  once  elected, 
the  vow  of  obedience  of  every  monk,  and  the  distinct 
renunciation  of  liberty,  make  him  master.  No  order, 
no  human  association  has  carried  the  doctrine  of 
absolute  obedience  to  a  more  frightful  extent  than 
the  Jesuits,  whose  founder  demands  that  the  inferior 
shall  be  in  the  hands  of  the  superior  ut  bacidum, 
like  a  mere  staff,  and  whose  distinctly  expressed 
principle  it  is  that  every  command  of  the  superior 
shall  be  like  a  commandment  from  on  high,  even 
thougli  sin  be  commanded.  Yet  the  government  of 
the  order  is  founded  on  election.      Mr.  Guizot,  in 


AND  SELF-GOVEKNMEXT.  309 

speaking  of  the  monastic  orders,*  says :  "  As  regards 
tlie  political  code  of  the  monasteries,  the  rule  of  St, 
Benedict  offers  a  singular  mixture  of  despotism  and 
liberty.  Passive  obedience  is  its  fundamental  prin- 
ciple ;  at  the  same  time  the  government  is  elective ; 
the  abbot  is  always  chosen  by  the  brothers.  When 
once  tlie  choice  is  made,  they  lose  all  liberty,  they 
fall  under  the  absolute  domination  of  their  superior. 
Moreover,  in  imposing  obedience  on  the  monks,  the 
rule  orders  that  the  abbot  considt  them.  Chap.  III. 
expressly  says,  '  Whenever  anything  of  importance 
is  to  take  place  in  the  monastery,  let  the  abbot  con- 
voke the  whole  congregation,  and  say  what  the  ques- 
tion is ;  and  after  having  heard  the  advice  of  the 
brothers,  he  shall  think  of  it  apart,  and  shall  do  as 
appears  to  him  most  suitable.'  Thus,  in  this  singu- 
lar government,  election,  deliberation,  and  absolute 
power,  were  coexistent."  The  pope  is  an  elective 
monarch  over  the  States  of  the  Church.  No  one  has 
ever  maintained  that  on  this  account  liberty  had  a 
home  in  that  country.  Nor  would  the  case  be 
altered  if  the  pope  were  elected,  not  by  the  college 
of  cardinals,  but  by  a  more  numerous  body  of  elec- 
tors, or  by  all  male  adults,  or  even  by  the  whole 
population,  male  and  female.  The  high  priest  or 
president  in  the  polity  of  that  stupendous  outrage 
called  Mormonism,  is  elective,  and  the  ^Mormons 
themselves  call  their  government  a  theo-demo- 
cracy;^    yet   a  greater   absolutism   has   never    ex- 


*  History  of  Civilization,  clmptcr  XIV. 

8  Tbeo-dcmocracy  does  not  contain  a   contradiction,  however 


310  ON  CIVIL  LIBERTY 

isted,  indeed,  we  may  fairly  say,  none  efjual  to  it.  It 
unites  democracy  and  communism,  -whicla  is  abso- 
lutism, with  continuous  and  permanent  revelations  of 
the  deity,  not  only  on  dogmatic  points,  but  on  every 
measure  of  weight.  It  is  a  jus  divinum  such  as  the 
ancients  did  not  even  dream  of  when  they  derived 
their  kings  from  the  loins  of  the  gods,  and  it  is  a 
communism  such  as  Mohammed  never  dared  to  em- 
body in  his  poHtico-religious  system. 

As  a  feature  of  Gallican  liberty  must  be  mentioned 
here  the  unicameral  system,  because  it  seems  to  be 
held  by  all  those  persons  who  seem  to  be  the  most  dis- 
tinct enunciators  of  this  species  of  liberty,  a  necessary 
requisite,  if  they  allow  the  principle  of  representation 
at  all.  They  consider  that  the  bicameral  system  of 
representatives  is  aristocratic,  or  else,  as  one  of  their 
writers  expresses  it,  that  two  houses  can  never  be 
reconciled  except  by  money  or  by  blood.  The  love 
of  a  legislature  of  one  house  is  a  necessary  conse- 
quence of  the  French  idea  of  unity  in  the  govern- 


novel,  and,  at  first  sight,  startling  the  term  may  appear  to  us.  If 
democracy  necessarily  expressed  the  idea  of  liberty,  then,  indeed, 
the  name  theo-democracy  ■would  be  senseless,  for  all  theocracy  or 
sacerdotal  rule  is  a  negation  of  civil  liberty.  It  immiu'cs  in 
dogma. 

In  a  similar  manner,  and  with  equal  justice,  does  the  missionary 
I.  Payne  say  of  the  Grebo  tribe,  at  Cape  Palmas,  that  their  consti- 
tution is  patriarchal,  with  a  pui'ely  democratic  government.  His 
account  is  contained  in  "  The  Report  of  the  Rev.  R.  R.  Gurley,  who 
,was  reccntlj'  sent  out  by  the  government  to  obtain  information  in 
respect  to  Liberia,"  published  by  the  Senate  of  the  United  States, 
in  1850,  olst  Congress,  1st  Session,  Executive  Docimient,  No.  75. 
The  political  philosopher  can  hardly  read  a  more  interesting  paper 
than  this. 


AND  SELF-GOVERNMENT.  311 

ment  or  tlic  unity  of  the  state,  which  docs  not  only 
mean  a  unitary  state,  and  actual  abhorrence  of  con- 
federacies, but  a  compact  system  of  centralization. 
.  The  Anglican  wants  union  in  his  general  govern- 
ment; the  Galilean,  unity.  He  wants  his  govern- 
ment to  be  a  solid  unit.'°  lie  wishes  to  deprive 
every  institution,  as  much  as  possible,  of  the  princi- 
ple of  self-government  and  indeiiendence,  and  the 
only  question  which  remains  is,  who  shall  be  the  ruler 
and  receive  that  power  which  government  gives? 
To  this  subject  as  to  many  others  on  which  1  have 


'°  The  extent  to  which  this  idea  is  occasionally  carried  out  is  al- 
most inconceivable  to  us,  accustomed  as  we  arc  to  so  essentially 
different  a  system  and  train  of  political  thoughts.  A  few  years 
ago  the  minister  of  the  interior  had  given  some  new  directions  re- 
garding the  (^uarautinc  rcgalatious.  They  were  more  in  conformity 
with  the  ojiiiiions  of  scientific  men  on  the  contagiousness  of  the 
plague.  The  people  of  Marseilles,  who  still  keep  the  terrilile 
plague  of  last  century  in  vivid  rcmemhrance,  disapjiroveil  of  these 
orders  from  the  central  government,  and  a  meeting  of  certain  per- 
sons was  called  together.  Whereupon  most  newspapers  took  part 
with  the  government,  and  charged  the  citizens,  with  whom  this  little 
germ  of  self-government  had  shown  itself,  Avith  the  hideous  sin  of 
federalism,  the  crime  for  which  many  had  lost  their  heads  in  the 
first  revolution.  This  was  in  the  times  of  the  so-called  repuhlic 
before  the  2d  of  December,  and  the  few  papers  which  took  side 
with  the  citizens  v/cre  legitimist  papers,  thus  furnishing  by  the  way 
another  instance  of  the  fact  tliat  all  sorts  of  things  are  pusMblo 
under  peculiar  circumstances.  It  was  the  torics  who  resisted  Wal- 
pole's  septennial  bill  abolishing  triennial  parliaments  ;  it  wns  tho 
Jesuits  who  first  enunciated  the  doctrine  of  the  sovereignty  of  tho 
people  in  order  to  get  a  fulcrum  again.st  heretical  monarchs;  it  was 
a  Spanish  Jesuit  who  defended  regicide  unilcr  I'hilip  11.  ;  ami  hero 
we  have  legitimists,  working  for  a  descemlant  of  f.otiis  the  Four- 
teenth who  took  side  for  a  principle  of  self-action  against  tiic  cen- 
tral government ! 


312  ON  CIVIL  LIBERTY 

touched,  wc  shall  return  when  I  shall  treat  more 
fully  of  the  institutional  government  and  its  0})po- 
site. 

It  is  not  likely  that  people  who  speak  witli  deri- 
sion of  parliamentary  government,  by  which  notliing 
is  meant  but  a  government  in  which  a  deliberative 
and  representative  legislature  forms  an  integral  part, 
and  of  "  parlementarism"  as  the  new  phrase  is,  would 
treat  the  legislature  as  an  institution  with  self-govern- 
ment and  a  necessary  degree  of  independence.  Ac- 
cording to  their  idea,  the  safeguards  which  we  believe 
are  found  in  a  mutually  moderSti^^e  contrivance  ought 
to  be  done  away  with.  Speedy  energy,  absence  of 
opposition,  no  results  which  are  the  products  of  mu- 
tual modification,  unity  of  ideas,  not  consisting  in 
collective  results  but  in  a  merely  logical  carrying 
out  of  some  abstract  principle ;  these  are  the  main 
objects,  according  to  Galilean  views. 

The  Spaniards,  the  Portuguese,  the  Neapolitans 
have  made  the  trial  of  imitating  the  French,  but 
have  succeeded  with  the  system  of  one  house  no 
better  than  the  French  themselves,  and  have  passed 
over  to  the  bicameral  legislature. 

There  are  states  in  which  the  medieval  principle 
of  estates  still  exists.  But  it  may  be  fairly  said  that 
this  is  a  remnant  of  the  middle  ages,  at  variance  with 
the  totally  changed  state  of  modern  society.  No- 
where do  they  present  themselves  as  a  system  of 
civil  liberty — it  is  rather  a  system  (and  rarely  even 
that)  of  privileges  ot  liter  ties.  In  Sweden  the  estates 
still  exist,  namely  four — the  clergy,  nobility,  citizens, 
and  peasants,  and  a  high  degree  of  liberty  is  enjoyed. 


AND  SELF-GOVERNMENT.  313 

But  in  examining  the  constitution  of  Sweden  we 
cannot  fail  to  observe  that  modern  liberty  is  rather 
superinduced  or  engrafted  on  the  system  of  states, 
than  evolved  out  of  it.  The  constitution  of  Norway 
on  the  other  hand  is  clearly  of  the  character  of  that 
liberty  which  we  have  designated  as  Anglican. 

I  believe  that  Frenchmen  would  point  out  their 
national  guards  as  an  element  or  guarantee  of  Galli- 
can  liberty.  They  were  established  during  the  first 
revolution,  and  have  always  been  diminished  in 
number  and  restricted  in  power,  in  those  periods  in 
which  the  government  made  war  upon  liberty.  Tliey 
cannot,  however,  be  considered  a  valid  guarantee 
in  so  concentrated  a  government  as  the  French  is, 
and  in  a  country  in  which  the  army  is  so  gigantic. 

It  must  have  plainly  appeared  that  liberty  seems 
to  me  efficiently  secured  only  by  the  Anglican  sys- 
tem. Other  attempts  in  modern  times  have  been  but 
very  partially  successful,  and  of  these  there  are  but 
few.  The  question  arises  at  once,  are  those  persons 
in  the  main  correct  who  roundly  assert  that  no  people 
are  fit  for  liberty  except  the  Anglo-Saxon?  For 
thus  they  call  the  English  nation,  and  those  who  have 
descended  from  it.  Or  is  it  correct  to  say  that  who- 
ever wishes  to  enjoy  liberty  must  copy  the  main 
institutions  of  Anglican  liberty?  On  these  and 
some  cognate  subjects  there  exist  so  many  startling 
errors,  that  the  remarks  on  the  different  types  of 
liberty  may  be  appropriately  concluded  by  some 
observations  on  them.  They  have  a  practical  bear- 
ing, and  influence  large  masses. 

It  is  doubtless  true  that  the  greatest  amount  of 
VOL.  L — 27 


314  ON  CIVIL  LIBERTY 

liberty  is  at  present  enjoyed  by  the  Anglican  tribe, 
"wbose  institutions  and  guarantees  seem  to  fomi  the 
only  extensive  and  consistent,  as  well  as  practical 
system  of  civil  liberty,  the  only  one  in  which  liberty 
and  law  have  become  firmly  interlocked,  and  by 
which  it  has  thus  become  possible  to  establish,  as  a 
practical  reality,  what  Tacitus  held  to  be  impossible — 
the  union  of  libertas  and  imperium.  It  is  true  also  that 
the  Anglican  tribe  has  had,  and  still  has,  a  greater 
influence  than  any  tribe  on  the  whole  white  race, 
and  that  other  nations  seem  to  have  enjoyed  liberty 
or  advanced  on  her  path  in  recent  times  in  the  same 
proportion  only  in  which  they  have  adopted  the 
main  principles  and  chief  institutions  elaborated  by 
this  tribe ;  and  it  is  equally  true  that  we  enjoy  so 
great  an  amount  of  freedom  because  we  are  accus- 
tomed to  liberty  and  a  government  of  law,  and 
because  our  tribe  has  perseveringly  developed  it  for 
centuries.  But  it  must  not  be  forgotten,  on  the  one 
hand,  that  other  nations  and  tribes  may  possibly 
develop  certain  principles  in  a  manner  peculiar  to 
their  character  and  circumstances;  and,  on  the  other 
hand,  that  it  is  the  rule  of  all  spreading  advancement 
of  humanity  that  the  full  amount  of  what  has  been 
gained  by  patience,  blood,  or  fortunate  combinations, 
is  transferred  to  other  regions  and  distant  tribes. 

The  missionary — from  St.  Paul,  when  he  went  to 
Eome,  to  those  who  now  embark  for  the  Pacific — does 
not  demand  the  neophyte  to  pass  through  the  dis- 
pensations of  the  old  testament,  and  all  the  expe- 
rience of  the  early  church,  before  he  begins  to  teach 
the  dispensation  of  the  new  testament,  and  establish 


AND  SELF-GOVERNMENT,  315 

cliurches  according  to  the  government  and  the  theo- 
logy which  exist  at  his  home. 

There  are  many  persons  who  pretend  to  admire 
liberty,  but  withhold  it  from  the  people  on  the  plea 
that  they  are  not  prepared  for  it.  Unquestionably, 
all  tribes  are  not  prepared  for  the  same  amount  of 
liberty,  and  many  are  not  yet  fit  for  any  real  liberty 
at  all.  But  two  things  are  certain,  that  all  nations, 
and  especiall}''  all  nations  belonging  to  our  own 
civilized  family,  prove  that  they  are  prepared  for  the 
beginning  of  liberty,  by  desiring  it  and  insisting 
upon  it,  and  that  you  cannot  otherwise  prepare 
nations  for  enjoying  liberty  than  by  beginning  to 
establish  it,  as  you  best  prepare  nations  for  a  high 
Christianity  by  beginning  to  preach  it  at  once. 

There  are  persons  even  among  ourselves  who, 
observing  how  many  and  sad  failures  have  taken 
place  with  other  nations,  bluntly  assert  that  none 
but  the  Anglo-Saxons  are  fit  for  liberty,  and  that 
it  cannot  be  enjoyed  by  others.  That  some  na- 
tions are  fitter  for  the  elaboration  or  peaceful  en- 
joyment of  liberty  than  others,  according  to  their 
character,  which  makes  them  perhaps  less  fit  to  excel 
in  some  other  branches  of  civilization,  cannot  be 
denied.  So  was  the  Greek  more  fit  for  the  fine  arts 
than  the  Roman.  That  some  tribes  appear  on  the 
stage  of  history,  act  their  part,  and  vanisli  again 
without  having  made  any  progress  in  civil  liberty, 
or  ever  having:  become  conscious  of  it  as  an  ele- 
ment  of  advancing  civilization,  is  equally  true.  But 
do  we  hold  any  nation,  once  fairly  entered  upon  the 
path  of  civilization,  unfit  for  science  or  the  arts,  or 


816  ON  CIVIL  LIBERTY 

a  stable  government,  or  a  literature,  or  for  Christi- 
anity ?  That  in  which  man  rises  highest,  and  mani- 
fests himself  most  intellectually — Christianity,  is 
believed  to  be  meet  for  all,  but  liberty  should  be 
restricted  to  a  tribe  or  a  single  nation?  It  is  not 
likely.  I  have  allowed  that  some  nations  are  fitter 
for  the  one  or  the  other.  All  will  not  equally  cul- 
tivate all  branches ;  each  cannot  originate  each 
branch;  but  all  will  partake  of  every  element  of 
civilization ;  and  while  it  may  be  proper  for  the  his- 
torian to  say  such  a  nation  has  not  been  able  to  act 
wdth  originality  in  this  or  another  branch,  it  is  not 
becoming  to  the  philosopher  to  say  that  this  part  of 
our  race  ivill  not  be  able  to  do  so.  When  the 
Greek  scholars  were  driven  from  Constantinople, 
and  carried  the  last  embers  of  Grecian  civilization 
and  intellectuality  over  the  west ;  when  Providence 
made  them  the  missionaries  of  a  renewed  civiliza- 
tion, and  the  restoration  of  letters  prepared  the 
way  for  still  higher  achievements,  no  one  said  that 
the  English,  or  French,  or  Germans  were  unfit  to 
partake  in  the  humanizing  blessing,  although  the 
Italian  soil,  still  bearing  the  effects  of  former  culture, 
was  the  first  to  bring  forth  delectable  fruit.  When 
Gothic  architecture  had  been  elaborated  by  some,  it 
was  not  believed  that  other  nations  could  not  raise 
cathedrals  in  the  same  style,  and  enjoy  it  and  develop 
it  in  their  own  way. 

On  the  other  hand,  we  meet  with  the  very  reverse. 
Anglican  liberty  is  opposed  on  the  ground  that  it  is 
not  indigenous,  and  that  it  is  both  inexpedient  and 
unworthy  to  adopt  it.     Large  numbers  in  France, 


AND  SELF-GOVERNMENT.  317 

both  communists  and  imperialists,  treat  "parliament- 
arism" in  this  manner ;  and  the  emperor  lately  said, 
when  he  had  assembled  the  senate  and  the  legislative 
corps,  that  France  for  "  the  first  time  enjoyed  the 
happiness  of  possessing  institutions,  exclusively 
French  and  original."  As  to  the  originality,  we 
would  only  observe  that  they  arc  fac-similes  of 
what  Napoleon  the  First  had  established,  and  that 
he  copied  the  senate,  as  he  did  the  eagle,  the  title 
and  idea  of  emperor,  the  name  of  legion,  of  prefect, 
from  Rome,  unfortunately  at  her  worst  period,  for 
the  Roman  senate  during  the  better  time  was  part 
of  the  proud  Senatus  Popul  usque  Roman  us  ;  and  the 
corps  legislatif,  if  there  be  any  element  of  a  repre- 
sentative legislature  in  it,  is  not  of  French  origin  ; 
if  it  be  a  mute  body,  however,  there  is  no  origin- 
ality in  it  either.  Even  if  it  were  as  the  emperor 
proclaimed  it,  it  would  convey  nothing  to  be  delighted 
in  of  itself  The  law  of  all  spreading  civilization  is 
emigration,  transmission,  and  addition.  Ought  the 
French  to  reject  the  Grecian  orders  of  architecture 
because  they  are  not  French,  or  ought  our  medical 
students  not  go  to  Paris  because  the  French  science 
of  medicine  is  not  ours?  Ought  the  French  to 
reject  saving  banks  because  they  were  first  estab- 
lished and  developed  in  England,  and  ought  the 
English  to  discard  Jacquard's  machine  because  in- 
vented in  France  ?  The  son  of  Sirach  said :  that 
wisdom  was  hovering  like  the  clouds  until  it  "  took 
root  in  an  honorable  people"" — the  Israelites.     It  is 


"  Ecclcsiasticiis,  24. 

27* 


318  ON  CIVIL  LIBERTY 

thus  with  all  wisdom,  all  great  ideas  and  comprehen- 
sive systems.  They  take  root  with  "  an  honorable 
people,"  that  develops  them.  After  that  come  the 
winds  of  heaven  and  carry  the  seeds  far  and  about. 
Patriotism  and  national  vanity  are  not  the  same. 
Patriotism  is  excellent  so  long  as  it  is  the  love  of 
its  own  to  such  a  degree  that  it  is  ready  to  bear  any 
sacrifice,  and  to  do  all  for  its  benefit ;  it  is  not  a  vir- 
tue when  it  consists  in  an  enamoredness  with  itself. 
Narcissus  is  not  the  symbol  of  patriotism,  but  Ly- 
curgus  and  Solon  travelling  far  in  order  to  gather 
knowledge  for  their  own  country,  are. 

At  all  great  and  distinct  periods  of  modern  his- 
tory, there  are  a  general  idea  and  certain  adequate 
forms  pervading  the  whole.  Such  was  the  papal 
period  at  the  beginning  of  the  middle  ages ;  such  was 
the  universal  feudal  system ;  such  the  period  of  uni- 
versities springing  up  everywhere;  such  the  periods 
of  art ;  such  the  periods  of  Abelard  and  scholastic 
philosophy ;  such  the  rising  of  free  cities  in  all  parts 
of  Europe ;  such  the  ardor  of  maritime  discovery  and 
enthusiasm  for  "  cosmography ;"  such  the  period  of 
monasteries ;  such  protestantism ;  and  such  is,  I 
believe,  the  present  period  of  civil  liberty ;  and  this  I 
believe  to  consist,  for  centuries  to  come,  essentially  in 
the  Anglican  type.  To  learn  liberty  I  believe  that 
nations  must  go  to  America  and  England,  as  we  go 
to  Italy  to  study  music,  and  to  have  the  vast  world 
of  the  fine  arts  opened  to  us,  or  as  we  go  to  France  to 
study  science,  or  to  Germany  that  we  may  learn  how 
to  instruct  and  spread  education.  It  was  a  peculiar 
feature  of  antiquity  that  law,  religion,  dress,  the  arts 


AND  SELF-GOVERNMENT.  319 

and  customs,  that  ever3'thing  in  fact  was  localized. 
Modern  civilization  extends  over  res^ions,  tends  to 
make  uniform,  and  eradicates  even  the  physical  dif- 
ferences of  tribes  and  races.'^  Thus  made  uniform, 
nations  receive  and  give  more  freely.  If  it  has 
pleased  God  to  appoint  the  Anglican  tribe  as  the 
first  workmen  to  rear  the  temple  of  liberty,  shall 
others  find  fault  with  Providence  ?  The  all-pervad- 
ing law  of  civilization  is  physical  and  mental 
mutual  dependence,  and  not  isolation. 

I  do  not  think  it  necessary  to  reply  here  to  those 
perverters  of  truth  who  try  to  justify  their  denial  of 
liberty  to  the  people  on  the  ground  that  it  is  not 
national.  This  is  done  by  governments  who  at  the 
very  time  copy  foreign  absolutism.  There  is  doubt- 
less something  essential  in  the  idea  of  national  de- 
velopment, but  let  us  never  forget  two  facts :  Men, 
however  different,  are  far  more  uniform  than  dif- 
ferent ;  and  all  the  noblest  nations  have  arisen  from 
the  mixture  of  others,  from  the  Greeks  to  our  own. 

'2  The  luutual  influence  of  diflferent  literatures  is  daily  extending. 
Tiike  as  an  instance  the  literature  of  England,  France,  Gorniany, 
and  the  United  ytatet;,  and  add  tlie  mutual  intluonce  of  the  jour- 
nals of  these  nations.  Then  consider  how  many  of  the  eiemonts  of 
civilization  arc  not  national,  but  common  to  all — the  alphabet,  the 
numeiic  ^igns,  with  the  decimal  system,  commercial  usages  and 
bookkeeping,  social  intercourse  and  hiws  of  politeness ;  the  visiting 
card,  the  railway,  the  steamboat,  tlie  post-otTice,  the  institution  of 
money,  the  bill  of  exchange,  insurance — indeed  it  is  impossible  to 
enumerate  all  the  agreemejits  of  nations  belonging  to  our  race.  I 
shiiU  only  add  tlie  dre-is,  the  furniture  ami  even  cookery. 


320  ON  CIVIL  LIBERTY 


CHAPTER    XXIV. 

THE  INSTITUTION.     ITS  DEFINITION.     ITS  POWER  FOR 
GOOD  AND  EVIL. 

It  has  been  shown  that  civil  liberty,  as  we  under- 
stand and  cherish  it,  consists  in  a  large  amount  of 
individual  rights,  checks  of  power  and  guarantees  of 
self-government.  We  have  more  or  less  fully  indi- 
cated that  self-government,  in  the  sense  in  which  we 
take  it,  and  in  connection  with  liberty,  consists  in  the 
independence  of  the  whole  political  society,  in  a 
national  representative  government  and  local  self- 
government,  which  implies  that  even  general  laws 
and  impulses  are  carried  out  and  realized,  as  far  as 
possible,  by  citizens  who,  by  receiving  an  of&ce,  be 
it  by  election  or  appointment,  essentially  remain 
citizens,  and  do  not  become  members  of  a  hierarchy 
of  placemen.'     We  have  seen  that  self-government, 


'  At  a  sumptuous  ball,  which  the  city  of  Paris  gave,  in  the  year 
18y],  to  the  commissioners  of  the  London  Exhibition,  I  Tvas  sitting 
in  a  corner  and  reflecting  on  the  police  officers  in  their  uniforms  and 
the  actual  patrols  of  the  military  pompiers  in  the  very  midst  of 
the  festive  and  crowded  assemblage,  when  I  was  introduced  to  one 
of  the  first  statesmen  of  France  and  liberal  members  of  the  national 
assembly.  He  had  been  at  London,  to  view  the  exhibition.  It  was 
the  first  time  he  had  visited  England.      "Do  you  know."  said  he, 


AND  SELF-GOVERNMENT.  321 

r 

in  general,  requires  that  there  be  an  organism  to 
elaborate  and  ascertain  public  opinion,  and  that, 
when  known,  it  shall  i)ass  into  law,  and,  plainly,  rule 
the  rulers ;  that  government  interfere  as  an  exception, 


"what  struck  me  most — far  more  tlian  the  cxliibition  of  works 
of  art  and  industry  ?  It  was  the  cxhiV)ition  of  the  civixm  anglais 
(this  was  the  term  he  used)  in  the  Loiidun  police."'  It  may  be  readily 
supposed  that  an  American  citizen  turned  his  face  toward  the 
speaker,  to  hear  more,  when  the  Frenchman  continued:  "I  am  in 
earnest.  The  large  number  of  policemen,  with  their  citizen  appear- 
ance, although  in  uniform,  seeming  to  be  there  for  no  other  purpose 
than  to  assist  the  people — and  the  people  ever  ready  to  assist  them — 
voiUI  what  has  most  attracted  my  attention.  Liberty  and  the  go- 
vernment of  law  are  even  depicted  in  their  police,  wliere  we  should 
seek  it  least.     What  is  it  that  strikes  you  most  in  coming  here?" 

"  The  American,"  I  replied,  "  in  visiting  the  continent  of  Europe, 
is  most  impressed  by  the  fact  that  the  whole  population,  from 
Moscow  to  Lisbon,  seems  to  be  divided  into  two  wholly  distinct 
parts — the  round  hats,  the  people,  and  the  cocked  hats,  the  visible 
government.  The  two  layers  are  as  distinct  as  the  hats,  and  the 
traveller  sees  almost  as  many  of  the  one  form  as  of  the  other." 

I  believe  that  my  French  interlocutor  showed  a  penetrating  mind 
in  thus  singling  out  tlie  Knglish  police. 

There  are  large  police  establi.shments  in  all  European  countries,  as 
all  densely  peopled  countries  require  them.  The  different  spirit 
and  organization,  however,  of  these  establishments  are  most  charac- 
teristic. Nothing,  perhaps,  shows  more  the  character  of  a  citizen- 
government  in  England  than  the  wide-spread  institution  of  the 
police,  which  has  developed  itself,  under  sir  Robert  Peel,  out  of  the 
ancient  constable.  It  has  immense  power ;  it  has  preventive,  detect- 
ive and  custodial  power ;  yet  it  is  supported  by  the  citizens,  and  no 
one  fears  that  it  will  ever  be  used  as  an  institution  of  political  es- 
pionage and  denunciation — as  dclatores  of  old  and  mouchards  of 
modern  times.  It  is  strictly  under  the  public  law,  and  that  implies 
under  publicity.  There  is  a  whole  literature  on  this  sulyect,  but 
I  know  of  no  brief  paper  exhibiting  so  well  its  essential  chai-acter 
as  the  seventh  paragrajdi  of  Mittcrmaier's  English,  Scottish  and 
American  Penal  Processes. 


322  ON  CIVIL  LIBERTY 

and  not  as  the  rule ;  and  that,  on  the  other  hand,  self- 
government  neither  means  self-absolutism,  nor  ab- 
sence of  rule,  but  that,  on  the  contrary,  liberty 
requires  a  true  government.  A  weak  government 
is  a  negation  of  liberty;  it  cannot  furnish  us  with  a 
guaranteeing  power,  nor  can  it  procure  supremacy 
for  public  will.  In  other  spheres  it  may  be  true  that 
license  is  exaggerated  liberty,  but  in  politics  there 
can  be  nothing  more  unlike  liberty  than  anarchy. 

"We  have  still  to  ascertain  how  this  system  of  civil 
liberty  is  to  be  realized.  Liberty  cannot  flourish, 
nor  can  freedom  become  a  permanent  business  of 
actual  life,  without  a  permanent  love  and  a  habit  of 
liberty.  How  is  the  one  to  be  engendered,  and  the 
other  to  be  acquired  ? 

There  is  no  mathematical  formula  by  which 
liberty  can  be  solved,  nor  are  there  laws  by  which 
liberty  can  be  decreed,  without  other  aids.  We  gain 
no  more  by  throwing  power  unchecked  into  the 
hands  of  the  people.  It  remains  power,  and  is  not 
liberty,  and  people  still  remain  men.  Flattery  does 
not  change  us,  for  we  are  all 

"  Obnoxious,  first  and  last 
To  basest  things, "^ 

and  thus  flattery  is  no  foundation  for  liberty.  Each 
one  of  us  may  be  declared  a  sovereign,  as  every 
Frenchman  was  designated  in  a  solemn  circular,^  by 


2  Paradise  Lost,  Book  9,  line  170. 

'  In  a  cii'cular,  sent  by  the  provisional  government  all  over  France 
before  the  general  election  for  the  national  constituent  assembly,  in 
1848,  was  this  sentence :  "  Every  Frenchman  of  the  age  of  manhood 


AND  SELF-GOVERNMENT.  328 

the  provisional  government,  or  the  people  may  be 
called  almighty — le  peuple  tout-puissant — as  in  the 
midst  of  loathsome  political  obscenity  they  were 
termed  by  the  dictatorial  government  when  they 
were  expected  and  led  to  vote  for  a  new  emperor, 
and  by  an  act  of  omnipotence  to  extinguish  all. 
They  were  asked  to  divest  themselves  of  this  very 
omnipotence,  whicli  nevertheless  is  claimed  for  the 
people  alone,  as  inherent  in  its  own  nature,  and  to 
submit  their  omnipotence  to  a  still  greater  omnipo- 
tence of  one  man.  Nothing  of  all  this  is  liberty. 
Self-immolation,  even  where  it  is  an  actual  and  not 
a  theoretical  act  of  free  agency,  is  not  life. 

Enthusiasm  is  necessary  for  liberty  as  for  every 
great  and  noble  work,  but  enthusiasm  comes  and 
goes  like  the  breezes  of  the  ocean.  How  shall  they 
be  used  for  the  positive  interests  of  the  navigator  ? 
Enthusiasm  is  not  liberty,  nor  does  the  reality  of 
liberty  consist  in  an  a?sthetical  love  of  freedom.  The 
poet  may  be  as  much  the  priest  of  liberty,  as  he  is 
the  seer  of  love,  but  poetry  is  no  more  the  thing  it 
sings  than  theory  is  the  deed,  or  ethics  the  character 
of  man. 

Education  has  been  considered  by  many  as  the 
true  basis  of  popular  liberty.  It  is  unquestionably 
true,  and  proudly  acknowledged  by  every  lover  of 


is  a  political  citizen ;  every  citizen  is  an  elector ;  every  elector  is  a 
sovereign.  There  is  no  one  citizen  who  can  say  to  another  :  '  You 
are  more  of  a  sovereign  than  I.'  Contemplate  j'our  power,  prepare  to 
execute  it,  and  be  worthy  of  entering  on  the  possession  of  your 
kingdom."  The  author  of  these  phrases  is  Mr.  de  Lamartine,  who 
says,  in  his  Revolution  of  1848  :  "  The  reign  of  the  people  is  called 
the  republic." 


324  ON  CIVIL  LIBERTY 

modern  popular  liberty,  that  a  wide-spread  and  sound 
education  is  indispensable  to  liberty.  But  it  is  not 
liberty  itself,  nor  does  it  necessarily  lead  to  it. 
Prussia  is  one  of  tbe  best  educated  of  countries,  but 
liberty  lias  not  yet  found  a  dwelling-place  there. 
The  Chinese  government  is  avowedly  based  upon 
general  education  and  democratic  equality  in  the 
hierarchy  of  officers,  but  China  has  never  made  a 
step  in  the  path  of  liberty.  Education  is  almost 
like  the  alphabet  it  teaches.  It  depends  upon  what 
we  use  it  for.  Many  despotic  governments  have 
found  it  their  interest  to  promote  popular  education, 
and  the  schoolmaster  alone  cannot  establish  or  main- 
tain liberty,  although  he  will  ever  be  acknowledged 
as  an  efficient  and  indispensable  assistant  in  the  cause 
of  modern  freedom. 

How  then  is  real  and  essential  self-government,  in 
the  service  of  liberty,  to  be  obtained  and  to  be  per- 
petuated? There  is  no  other  means  than  a  vast 
system  of  institutions,  whose  number  supports  the 
whole,  as  the  many  pillars  support  the  rotunda  of 
our  capitol.  They  may  be  modest  in  their  appear- 
ance, and  even  unseen  by  the  passer-by,  as  those 
pillars  are,  but  they  are  nevertheless  the  real  sup- 
port. 

Let  us  then  consider  the  nature  of  institutional 
liberty  more  closely.  In  order  to  appreciate  this 
subject,  it  will  be  desirable  to  inquire  first  into  the 
nature  of  institutions  in  general. 

According  to  the  highest  meaning  which  the  term 
has  gradually  acquired,  an  institution  is  a  system  or 
body  of  usages,  laws,  or  regulations  of  extensive 


A^'L>  SELF-GOVERNMENT.  825 

and  recurring  operation,  containing  within  itself  an 
organism  by  which  it  effects  its  own  independent 
action,  continuance,  and,  generally,  its  own  farther 
development.  The  idea  of  an  institution  implies  a 
degree  of  self-government.  Laws  act  through  human 
agents,  and  these  are,  in  the  case  of  institutions, 
their  officers  or  members. 

We  are  likewise  in  the  habit  of  calling  single 
laws  or  usages  (which  are  laws  of  spontaneous 
growth)  institutions,  if  their  operation  is  of  vital 
importance  and  vast  scope,  and  if  their  continuance 
is  in  a  high  degree  independent  of  any  interfering 
power.  These  two  characteristics  establish  a  close 
affinity  between  such  laws  and  institutions  proper 
as  they  have  been  just  defined.  Thus  we  call  mar- 
riage an  institution  in  consideration  of  its  pervading 
importance,  its  extensive  operation,  the  innume- 
rable relations  it  affects,  and  the  security  which  its 
continuance  enjoys  in  the  conviction  of  almost  all 
men,  against  any  attempts  at  its  abolition.  Indeed, 
we  generally  mean  by  the  term  Institution  of  Mar- 
riage, pretty  much  the  institution  of  the  family,  that 
is  the  family  as  a  community  sanctioned  and  fostered 
by  the  law,  by  authoritative  usages,  and  by  religion — 
the  cluster  of  laws  and  usages,  social,  political,  and 
religious,  which  relate  to  this  well-defined  commu- 
nity. 

It  always  forms  a  prominent  element  in  the  idea 

of  an  institution,  Avhcthcr  the  term  be  taken  in  the 

strictest  sense  or  not,  that  it  is  a  group  of  laws, 

usages  and  operations  standing  in   close  relation  to 

VOL.  L— 28 


326  ON  CIVIL  LIBERTY 

one  another,  and  forming  an  independent  whole  with 
a  united  and  distinguishing  character  of  their  own. 

A  system  of  laws  very  often  consists  of  a  variety 
of  systems,  each  enjoying  a  proportionate  degree  of 
self-government,  as  a  general  organism  is  composed 
of  many  organs  with  distinct  and  peculiar  actions 
of  their  own,  although  working  in  unison  and  ac- 
cording to  the  principles  and  regulative  laws  of  the 
general  organism.  We  have  many  institutions 
which  consist  of  a  number  of  institutions  either  of 
the  first  mentioned  or  second  sort,  and  as  institutions 
may  exist  in  all  the  great  spheres  of  human  action 
it  naturally  results  that  there  are  institutions  of  the 
greatest  variety  in  character  and  extent.  A  bank, 
parliament,  a  court  of  justice,  the  bar,  the  church, 
the  mail,  a  state  are  institutions,  as  well  as  the  lord's 
supper,  a  university,  the  inquisition,  all  the  laws  re- 
lating to  property,  the  sabbath,  the  feudal  system. 
The  Roman  triumph,  the  Hindoo  castes,  the  bill  of 
exchange,  the  French  Institute,  our  presidency,  the 
New  York  tract  society,  the  Areopagus  or  Olympic 
games,  an  insurance  company,  the  janizaries,  the 
Enghsh  common  law,  the  episcopate,  the  tribune- 
ships,  the  "captainship"  of  a  fishing  fleet  on  the 
banks,  "  the  crown,"  the  German  book  trade,  the 
Goldsmith's  Company  at  London,  our  senate,  our 
representatives,  our  congress,  our  state  legislatures, 
courts  of  conciliation,  the  justiceship  of  the  peace, 
the  priesthood,  a  confederacy,  the  patent,  the  copy 
right,  hospitals  for  lunatics,  estates,  the  East  India 
Company — all  these  and  thousands  more  are  or  were 
institutions  in  the  one  or  the  other  adaptation  of  the 


AND  SELF-GOVERNMENT.  327 

term.  Whether  they  are  good  or  bad,  expedient  or 
unwise,  huraan  or  divine  has  nothing  to  do  with  the 
distinctive  character  of  an  institution  as  such. 

"  The  School,"  that  is  to  say  the  whole  school  sys- 
tem, as  well  as  the  modern  national  army,  in  Prussia, 
have  been  called  institutions,  when  it  was  desired  to 
express  the  idea  that  they  are  establishments  of  vast 
importance  and  that  they  enjoy  a  sup})osed  degree 
of  independent  vitality.  Mr.  Bunsen,  in  his  Hyppo- 
litus,  calls  the  book  of  common  prayer  "  a  national 
institution."'' 

The  noun  Institution  is,  indeed,  formed  of  the 
verb  to  Institute,  but  it  does  not,  on  that  account, 
express,  as  noun,  the  action  or  the  eifect  of  that 
which  constitutes  the  meaning  of  the  verb.  The 
sense  of  the  noun  frequently  diverges  from  that  of 
the  verb,  in  all  languages,  and  especially  so  in  the 
English.*     We  institute  an  inquiry;  but  an  inquiry 


■•  Vol.  iii.  293. — A  member  of  the  late  French  National  Assembly, 
speaking  of  the  enormous  C.alifoi'nia  lottery,  which  was  then  iu  its 
full  ruinous  operation  in  France,  used  the  expression:  "  This  is  not 
a  lottery;  it  is  a  series  of  lotteries;  I  ought  to  say  an  institution 
of  lotteries." 

The  exaggeration  was  carried  farthest  when  an  English  news- 
paper called  the  duke  of  Wellington  an  institution.  We  see,  how- 
ever, through  the  exaggeration,  the  original  sense  universally  at- 
tributed to  the  term. 

^  The  word  is  a  finished  and  a  given  thing;  the  idea  is  in  a  con- 
stant state  of  expansion  or  contraction,  far  exceeding  the  formative 
powers  even  of  the  most  perfect  language,  so  that  fretiuently  a 
whole  class  of  words  derived  from  the  same  root  retains  nothing 
in  common  but  a  vague  association  of  ideas,  and  even  this  often 
vanishes.  The  history  of  the  changing  meaning  of  man's  words  is 
instructive,  and  equally  so  the  history'  of  the  changing  word.     I 


328  ON  CIVIL  LIBERTY 

is  not  an  institution ;  and  on  the  other  hand,  there 
are  many  institutions  which  have  never  been  insti- 
tuted.    They  have  grown. 

This  class  of  institutions  forms  in  a  certain  point 
of  view  the  most  important,  as  will  be  admitted 
when  we  consider  that  the  jury,  systems  of  common 
law,  the  British  parliament  and  our  bicameral  sys- 
tems of  the  legislature,  most  governments  and  the 
states  themselves  are  grown  institutions. 

The  English  language  has  but  one  term  for  both, 
the  crescive  institutions,  as  they  might  be  termed, 
and  the  instituted  or  enacted  institutions,  such  as 
a  corporation,  congress  or  our  legislatures;  whose 
iustitutors  are  the  people,  enacting  the  constitu- 
tions. Grown  or  spontaneous  institutions  are  not 
ill-defined  or  loosely  distinguished  from  one  another 
on  that  account ;  they  may  be  as  individualized  as  a 
shady  tree  in  the  forest;  and  enacted  or  contrived 
institutions  are  not  confined  and  narrow  on  that 
account.     They  may  be  as  extensive  in  action  as  an 


need  only  allude  to  such  remarkable  words  as  Stare,  Status,  Statute, 
Stand,  Establishment,  Stabilis,  Estate,  and  the  whole  history  through 
which  the  meaning  of  the  word  State  has  passed  and  is  still  passing  on 
the  one  hand,  and  the  many  branches  such  as  Stable,  Staple,  StafiF, 
Station,  Statistics ;  or  we  may  take  Civis,  Civitas,  Civilis,  Civilitas, 
Civility,  Civil  (in  its  two  distinct  terms).  Civilization,  Citizen  ;  Nas- 
cor.  Nation,  National;  Populus,  Publicus  (for  populicus),  Public, 
People,  Popular  and  Popularii:  Gignere,  Genus,  Gens,  Gentile, 
Gentle,  Genteel,  Gentleman,  with  the  different  meanings  through 
which  this  last  word  has  passed  from  the  time  when  it  meant  a 
man  of  gentle,  that  is,  not  vulgar,  not  common  blood  or  extraction, 
to  its  pi'esent  import,  which  relates  exclusively  to  chai'acter  and 
breeding.     Breeding  itself  might  be  mentioned  here. 


AND  SELF-GOVERNMENT.  .120 

Atlantic  steam-ship.  The  speakership  is  a  well- 
defined  crescive  institution ;  the  supreme  court  of 
the  United  States  is  a  vast  enacted  institution. 

Most  of  the  institutions  which  owe  their  origin  to 
spontaneous  growth  have  become  in  course  of  time 
mixed  institutions.  Positive  legislation  has  become 
mingled  with  self-grown  usage,  as  is  the  case  with 
the  institution  of  property,  the  jury,  the  bill  of  ex- 
change, the  Hindoo  castes,  money. 

It  is  with  the  object  of  comprehending  the  grown 
as  well  as  the  established  institutions,  that  the  words 
"  usages,  laws,  or  regulations"  have  been  emploj'ed 
in  the  definition  at  the  head  of  this  discussion. 

Dr.  Thomas  Arnold,  whose  name  I  never  mention 
without  veneration,  says,  at  the  beginning  of  his 
Lectures  on  History  :  "  I  would  first  say  that  by  in- 
stitution I  wish  to  understand  such  ofTicers,  orders 
of  men,  public  bodies,  settlements  of  property,  cus- 
toms or  regulations,  concerning  matters  of  general 
usage,  as  do  not  owe  their  existence  to  any  express 
law  or  laws,  but  having  originated  in  various  ways 
at  a  period  of  remote  antiquity,  are  already  parts  of 
the  national  system,  at  the  very  beginning  of  our 
historical  view  of  it,  and  are  recognized  by  all  actual 
laws,  as  being  themselves  a  kind  of  primary  condi- 
tion on  which  all  recorded  legislation  proceeds. 
And  I  would  confine  the  term  laws  to  the  enact- 
ments of  a  known  legislative  power  at  a  certain 
known  period." 

It  will  be  seen  that  this  writer  restricts  tlie  mean- 
ing of  the  term  institution  to  what  has  been  cilled 
28* 


330  ON  CIVIL  LIBERTY 

grown  institutions ;  nor  does  he  do  this  with  philo- 
sophical cogency.  He  enumerates  instances  rather 
than  gives  a  definition;  and  it  seems  arbitrary  to 
bestow  the  term  on  grown  institutions  only.  It  is 
contrary  to  universal  usage,  as  well  as  to  the  ne- 
cessity of  the  case.  What  is  an  instituted  legisla- 
ture of  Wisconsin,  an  incorporated  bank,  an  orphan 
asylum,  or  a  chartered  city  government,  if  it  be  not 
an  institution?  According  to  Dr.  Arnold,  scarcely 
a  pure  institution  exists,  for  in  all,  or  nearly  all, 
institutions  positive  enactments  have  become  mixed 
up  with  the  unenacted  usage,  as  has  been  mentioned 
before. 

Nor  is  it  accurate  to  call  certain  "  ofldcers  or  orders 
of  men"  institutions.  What  unites  the  individual 
ofl&cers  into  an  institution  ?  or  how  can  the  institu- 
tion outlast  the  individual  ofl&cers  existing  at  any 
given  period  ?  How  could  the  house  of  representa- 
tives of  congress  be  an  institution,  which  every  one 
calls  it,  and  which  assuredly  it  is,  when  its  members 
cease  to  be  such  every  two  years  ?  They  are  but 
temporary  members  of  the  perpetual  institution. 
The  institution  itself  is  the  organic  law  in  the  con- 
stitution of  the  United  States  which  provides  for 
the  organization  and  periodical  renewal  of  the  house. 
The  same  is  true  with  reference  to  the  state  and  its 
citizens,  living  at  any  given  time.  Citizens  are  born 
and  are  dying  all  the  time,  but  the  state  is  a  con- 
tinuum. The  jury  of  the  common  law  is  an  institu- 
tion now  spreading  over  the  territory  of  at  least 
sixty-eight  millions  of  people,  but  the  jurors  form 


AND  SELF-GOVERNMENT.  331 

only  very  transitory,  although  continually  repeated 
representations  or  embodiments  of  the  institution.* 

It  is  this  very  fact,  ])assed  over  by  Dr.  Arnold, 
that  constitutes  one  of  the  most  important  practical 
features  of  the  institution.  It  spreads  the  framework 
of  the  same  system  of  laws  over  sets  of  men  periodi- 
cally renewed,  prescribing  their  line  of  action,  so  that 
it  becomes  a  consistent  continuation  of  that  which 
their  predecessors  have  done,  or,  to  express  it  in 
other  words,  it  breathes  the  same  leading  principles 
into  difi'erent  aggregates  of  men  and  different  gene- 
rations, as  the  same  principles  in  varying  matter 
produce  and  reproduce  the  same  seasons.  The  in- 
stitution thus  insures  perpetuity,  and  renders  de- 
velopment possible,  while  without  it  there  is  little 
more  than  subjective  impulsiveness,  which  may  be 


^  The  term  Institute  seems  to  differ  from  Institution,  according 
to  present  usage,  in  this,  that  the  first,  when  it  does  not  mean  the 
initiatory  knowledge  of  a  wide  system  of  knowledge  (as  institutes  of 
the  pandects,  of  medicines),  is  chiefly  used  as  a  noun  proper  for  an 
institution  of  learning  or  the  diffusion  of  knowledge,  for  instance 
French  Institute,  Mechanics'  Institute.  It  may  be  used  as  a 
generic  term  for  institutions  of  diffusion  of  knowledge  of  a  higher 
character;  but  it  is  frequently  abused  in  these  cases.  Schools  of 
some  pretence  are  called  institutes,  with  that  deplorable  extrava- 
gance with  which  common  schools  are  called  academics,  common 
colleges  universities,  auction  rooms  auction  marts,  a  single  and 
simple  person  a  party,  every  chairman  a  president,  and  which 
has  so  sadly  invaded  our  manly  language  that  many  superlative 
words,  such  as  splendid,  magnificent,  giantlike,  transcendent,  illus- 
trious, and  hundreds  of  others  can  hardly  be  any  longer  used  by  a 
sober  and  vigorous  writer,  and  haw  become  worth  little  more  tlian 
olil  coins,  once  good  but  now  clipped,  punclied,  and  swetted  by 
unlawful  usage. 


8B2  ON  CIVIL  LIBERTY 

good  and  noble  or  ruinous  and  purely  passionate,  but 
always  lacks  continuity,  and  consequently  develop- 
ment and  safe  assimilating  growth.  A  market 
assembly,  convened  at  stated  intervals,  without 
institutions,  can  produce  little  more  than  a  suc- 
cession of  impulsive  or  instinctive  actions,  the  more 
impulsive  the  more  exciting  the  subject  is  on  which 
the  uninstitutional  multitude  acts.  The  same  applies 
to  larger  communities,  if  they  act  without  institutions, 
and  in  this  resemble  the  Indians  of  the  pampas,  who 
meet  and  act  on  each  question  by  simple  majority, 
unguided,  unmoulded,  unrestrained  by  permanent 
laws  and  usages,  or  without  a  maturing  organism. 

There  is  nothing  so  void  of  lasting  good  as  that  his- 
tory which  consists  of  a  succession  of  actions  through 
which  there  runs  no  connecting  idea,  no  growth 
and  expansion.  It  sinks  to  mere  anecdotical  chro- 
nolog}^  All  that  is  deeply  good  or  truly  great,  and 
not  only  vast,  in  the  sense  of  Attila's  conquest,  re- 
quires development  and  progress.  Impulsiveness 
without  institutions,  enthusiasm  without  an  organism, 
may  produce  a  brilliant  period  indeed,  but  it  is  gene- 
rally like  the  light  of  a  meteor.  That  period  of 
Portuguese  history  which  is  inscribed  with  the  names 
of  Prince  Henr}'^  the  Navigator,  Camoens  and  Albu- 
querque, is  radiant  v/ith  brilliant  lustre,  but  how 
short  a  day  between  long  and  dreary  nights !  Portugal 
had  no  institutions  to  perpetuate  her  glory,  and  that 
splendor  was  but  the  accidental  effect  of  fortunate 
circumstances  happening  to  combine  at  that  period. 
The  best  national  impulses,  without  institutions, 
remain  but  happy  accidents. 


AND  SELF-GOVERN'MENT.  333 

When  it  is  said  that  one  of  the  requLsites  of  tlie  in- 
stitution is  that  it  shall  contain  within  itself  an  organ- 
ism by  which  it  effects  its  own  independent  action  and 
continuance,  it  is  obvious  that  this  must  be  taken  in  a 
comparative  sense,  because  every-  institution  ought  to 
stand  in  connection  with  others,  and  is  frequently  a 
minor  organism  of  a  more  comprehensive  one ;  or  an 
institution  may  be  actually  the  creature  of  the  legisla- 
ture, and  the  legislature  itself  may  be  the  creature  of 
the  constitution,  which  may  have  emanated  from  the 
sovereign  will  of  the  people.  Yet  we  call  a  body 
of  laws  or  usages  an  institution  only  when  we 
unite  the  idea  of  an  independent  individuality  with 
it.  It  must  have  its  own  distinct  character,  its  own 
pecrdiar  action,  and  it  must  not  owe  its  continuance 
to  the  arbitrary  mandate  of  a  will  foreign  to  it. 
Independence  does  not  mean  sej unction  or  isolation. 

If  this  were  not  so,  we  would  not  stand  in  need  of 
the  term  institution,  and  the  sinijilc  tfiin  of  l^iw  or 
Ordinance  would  suffice. 

Neither  the  Ilomans  nor  the  Greeks  had  a  separate 
term  for  institution;'  indeed  the   Greeks   had    not 


■'  The  Latin  Institutnm  floes  by  no  means  exactly  c<irn;*i«i)ii<l  ti> 
our  word  institution.  It  means  a  purjiose,  oliject,  i>lan  or  design, 
and,  finally,  a  settled  procedure,  by  whiili  it  is  intended  to  obtain 
a  certain  object;  hence  a  uniform  method  of  action,  to  be  ..bf«erve<l 
when  sinular  cases  occur.  Iiiililulum  is  very  fri<i\niitly  ujted  in 
conjunction  with  conaueludo,  and  often  means  ni>thinp  nn>rc  Ihiin 
settled  usage  with  reference  to  certjiin  cases.  Inittiuium  thud 
designates  one  of  the  elements  of  our  Institution,  but  it  does  not 
include  the  idea  of  a  distinctly  limited  system  of  laws  or  u-wgrs 
with  a  considerable  deprce  of  autonomy,  nor  docs  it  romi«rrhcncl 
the  idea  of  our  enacted  institutions.      Institutum  retains  the  idea  of 


884  ON  CIVIL  LIBERTY 

even  distinct  words  for  the  Latin  jus  and  lex,  a  pau- 
city of  language  which  we  share  with  them ;  and  if 
the  Romans  had  no  word  for  institution,  although 
they  had  many  real  institutions,  we  have  many  im- 
portant separate  systems  of  law,  such  as  the  law  of 
insurance,  of  bailment,  the  maritime  law,  without 
having  an  appropriate  term  for  separate  bodies 
of  laws  and  rules.  Nor  did  the  Roman  probably 
feel  the  want  of  a  word  for  Institution,  for  the  same 
reason  that  he  expressed  time  by  saying:  "Two 
hundred  years  after  the  founded  dty^  The  thing 
itself,  the  city,  was  in  his  mind.  We  Avould 
say :  Two  hundred  years  after  the  foundation  of  the 
city.  The  foundation  of  the  city,  an  abstraction,  is 
in  our  mind.  The  Roman  said  Respublica,  the  Public 
Thing;  and  upon  this  raft  of  words,  strong  but 
coarse,  his  o-vvn  political  progress  and  civic  life 
forced  him  to  put  a  heavy  freight  of  meaning,  until 
it  came  to  designate  the  vast  idea  of  Commonwealth. 
The  Roman  was  adverse  to  abstract  terms.*      Ab- 


usage  throughout.  Still,  it  is  readily  seen  how  the  Roman  word 
instiiutuni  was  naturallj''  changed  and  expanded  into  the  modem 
word  Institution. 

*  The  Roman  shunned  abstraction  even  though  he  should  become 
illogical.  He  said :  In  medias  res,  into  the  middle  things,  instead 
of  into  the  middle  of  things,  and  we  moderns  abstract  even  against 
all  sense.  I  read  but  yesterday  in  large  letters  over  a  shop  this 
word — Carpetings.  Here  we  have  first  an  unmeaning  abstraction 
of  a  simple  and  sound  word,  carpet,  and  then  a  plural  is  made  of 
the  more  abstract  term.  The  Americans,  altogether  inclined  to 
use  pompous  and  grandiloquent  words,  are  also  given  to  use  these 
abstract  terms  or  those  that  approach  abstraction  far  more  than 
the  English.  The  sign  of  the  smallest  baker's  shop  will  not  be 
John  Smith,  Baker,  but  Bakery  by  John  Smith,  perhaps  even  Ameri- 


AND  SELF-GO VERNM EXT.  335 

stracting  was  a  process  at  which  he  was  uo  good  liaiul.' 
The  Greeks,  however,  may  have  lacked  a  proper 
term  for  the  idea  Institution,  although  so  ready  to 
abstract,  and  possessed  of  a  plastic  language,  which 
offered  peculiar  facilities  for  the  formation  of  abstract 
terms,  while  yet  the  people  were  characterized  by  an 
eminently  political  temperament,  simply  because  the 
Greeks  were,  comi)aratively  speaking,  not  a  tribe  of 
an  institutional  bias.  They  were  not  prone  to  esta- 
blish political  institutions,  and,  with  the  exception  of 
the  Dorians,  preferred  to  bring  everytliing  under  the 
more  or  less  direct  will  of  the  mass.  But,  although 
the  Greeks  abstracted  well,  and  had  a  language  in 
which  they  could  readily  cast  any  abstraction,  it  must 
not  be  forgotten  that  they  rather  restricted  tlicir 
terms  of  abstraction  to  philosophical  speculation,  and 
in  all  the  other  spheres  of  life  and  action  they  mani- 
fested the  true  antique  spirit,  that  of  positive  reality. 
Their  style  and  expressions  accorded  with  this  h'uxs. 


can  Bakery,  or,  should  it  happen  to  be  near  tlio  sea,  Ocean  Hakcry. 
A  common  shop  of  a  green  grocer  in  the  .<ec<<nil  larpest  city  of  tho 
United  States  calls  itself  United  St4ite.s  Market.  Tlio  nefn""*"" 
have  caught  the  fever.  Not  long  ago  I  saw  a  common  thaniy 
erected  in  a  southern  forest,  to  accomnioilato  travellers  with  coffee 
while  their  luggage  was  ferried  over  a  river,  adorned  with  tho 
following  words  on  a  i)inc  board:  Jeiuiy  Liml  and  .Soutag  lintel. 
The  railway  bridge  had  been  carried  away,  and  the  cafe  wa.t  but 
for  a  few  days. 

9  The  best  grammarians   tfll    us   tlmt  I.iitin    n.>uns   ending  in  lo, 
and  adjectives  ending  in   His   (that  is,  abstract  terms),   mu.Ht  bo 

used  with  circumspection,  and  not  without  g 1  authority,  since  they 

are  comparatively  rare  in  the  best  writers.  Tiiis  is  true,  aii-l  •>|.oakf< 
volumes  concerning  the  Romnn  character  and  mental  p<)Msfiiiiti..n. 


836  ON  CIVIL  LIBERTY 

Tliey  might  as  easily  as  ourselves  have  said  the 
Union  or  the  League  of  the  Achaeans,  but  their  word 
for  our  union  was  simply  "  the  whole"  {to  xoivov). 

Few  nations  have  evinced  a  greater  and  more  con- 
stant tendency  to  build  up  institutions,  or  to  cluster 
together  usages  and  laws  relating  to  cognate  subjects 
into  one  system,  and  to  allow  it  its  own  vitality,  than 
the  Romans  in  their  better  period.  The  Greeks,  as 
has  been  observed,  were  far  less  an  institutional  peo- 
ple. There  is  a  degree  of  adhesiveness  and  tenacity 
— a  willingness  to  accumulate  and  to  develop  pre- 
cedents, and  a  political  patience  to  abide  by  them — 
necessary  for  the  growth  of  strong  and  enduring 
institutions,  which  little  agreed  with  the  brilliant, 
excitable,  and  therefore  changeable  Greeks.  This 
was  at  least  the  case  with  the  Athenians  and  all  their 
kindred,  and  to  them  belongs  the  main  part  of  all 
that  we  honor  and  cherish  as  Grecian. 

The  London  Times  has  called  the  queen  of  Eng- 
land an  institution.  This  is  rhetorically  putting  the 
representative  for  the  thing  represented — the  queen 
for  the  crown,  which  itself  is  a  figurative  expression 
for  the  kingly  element  in  the  British  polity.  Never- 
theless, the  meaning  of  the  assertion  that  the  queen 
of  England  is  an  institution,  is  correct  and  British. 
It  originated  from  a  conviction  that  the  monarch  of 
Great  Britain  is  not  such  by  his  own  individuality, 
that  he  is  not  appointed  by  a  superior  power  or 
divine  right,  but  that  he  enjoys  his  power  by  the  law 
of  the  land,  which  confines  and  regulates  it.  It 
means  that  he  is  the  chief  ofl&ce-bearer,  or,  it  may  be, 
the  chief  emblem-bearer,  of  a  vast  institution,  whicTi 


AND  SELF-GOVERNMENT.  387 

forms  an  integral  part  of  the  still  more  comprehensive 
institution  called  the  British  government  or  the  state." 


9  The  reader  who  desires  to  become  ncquaiutcd  with  the  appo- 
site view,  must  turn  to  the  Christiau  Politics,  by  Rev.  Wm.  Sewell, 
Fellow  and  Subrector  of  Exeter  College,  London,  1848 ;  a  book 
which  cames  out  the  views  of  Filmcr  to  an  extent  which  that 
apologist  of  absolutism  never  contemplated.     It  maj'  be  fairly  con- 
sidered to  occupy  the  point  opposite  to  that  of  the  most  rabid 
socialist  of  France ;  and,  according  to  the  rule  that  wc  ought  to 
welcome  a  work  which  carries  its  principle  to  the  fullest  length, 
no  matter  what  that  principle  may  be,  it  is  worth  the  student's 
while  to  make  himself  acquainted  with  it.     If  he  can  get  through 
the  whole,  however,  he  is  more  patient  than  I  found  it  possible 
to  be.     According  to  Mr.  Sewell,  there  is  but  one  true  govern- 
ment, absolute  monarchy,  demanding  absolute  obedience ;  the  king 
makes  the  state,  and  the  view  I  have  endeavored  to  prove  in  my 
Ethics,  that  the  state,  despite  of  its  comprehensive  importance,  still 
I'emains  a  means  to  obtain  certain  ends,  is  attacked   as  the  opinion 
of  mere  "  iihilosophcrs."    The  king,  the  house  of  IiuhIs,  and  that  of 
the  commons,  as  they  ought  to  be  considered,  indicate,  according 
to  this  writer,  the  relation  in  which  possibly  the  three  persons  of 
the  one  deity  stand.    Filmcr  stopped  short  at  least  witii  Adam.    To 
counteract  the  revolting  effect  which  may  have  just  been  produced, 
I  refer  the  reader  to  page  14G,  where  he  will  find,  in  a  passage  of 
great  length,  that  the  Greek  at  Marathon  fought  only  for  lus  coun- 
try, his  hearth  and  his  laws,  while  the  Persian  far  surpassed  him, 
because  he  fought  for  his  king  (those  also  who,  according  to  Hero- 
dotus, were  whipped  into  battle?),  and  that  "a  christian  eye  will 
look  with  far  greater  satisfaction  and  admiration  on  the  Persians, 
who  threw  themselves  out  of  the  sinking  vessel,  that  by  tlicir  own 
death  they  might  save  their  king,  than  upon  Therni<ij)ylip  or  .Mara- 
thon."   Enough!     I  should  not  have  allndcd  to  such  extravagances 
and  crudities,  were  not  the  book  a  very  learDe<l  yet  illogical  a]>ology 
for  a  doctrine  which  many  may  have  supposed  to  bo  dea<l,  and  di<l 
it  not  occupy,  in  view  of  its  preposterous  theory,  Uic  first  place  of 
its  class.     Nor  is  it  historically  uninteresting  tliat  such  a  work  lino 
been  wi-itten  in  the  middle  of  the  nineteenth  century.     So  mui-ii  is 
certain,  that  were  the  English  government  actually  founded  upon 
VOL.  L— 21> 


888  ON  CIVIL  LIBERTY 

In  the  same  way  are  the  lord  chancellor,  the  Justice 
of  the  peace,  the  coroner,  institutions ;  not  indeed  the 
individuals  who  happen  to  be  invested  with  the 
office,  but  those  systems  of  laws  and  usages  which 
they  represent  at  the  time. 

It  is  likewise  obvious  why  very  old  usages  or 
offices  of  large  influence  are  often  called  institutions. 
The  fact  of  their  being  old  proves  a  degree  of  inde- 
pendent action  or  existence.  No  change  of  things 
around  them  has  swept  them  away ;  no  power  has 
ventured  to  strike  them  down.  They  appear  to  be 
rooted  in  society  itself,  beyond  the  reach  of  govern- 
ment ;  and  single  offices  occasionally  are  called  insti- 
tutions, by  way  of  flattery,  because  all  feel  that  a  real 
institution  is  in  dignity  superior  to  a  single  law  or 
office,  on  account  of  its  inherent  principle  of  self- 
government. 

The  following,  then,  are  necessary  attributes  of  a 
complete  institution,  taking  the  term  in  its  full  mo- 
dern adaptation : 

A  system  or  an  organic  body  of  laws  or  usages 
forming  a  whole ; 

Of  extensive  operation,  or  jjroducing  widely  spread 
effects ; 

Working  within  a  certain  defined  sphere ; 

Of  a  high  degree  of  independent  permanency ; 

"With  an  individual  vitality  and  an  organism,  pro- 
viding  for   its   own  independent   action,    and,    fre- 


tliat  hyper-absolutism,  -whicb  the  author  considers  so  christian,  no 
one  would  he  permitted  to  assail  its  fundamental  principles  ■with 
that  impunity  which  he  now  enjoys. 


AND  SELF-GOVERXMEXT.  339 

quentl}^,  for  its  own  development  or  expansion,  or 
with  autonomy ; 

And  with  its  own  officers  or  members,  because 
without  these  it  would  iKJt  be  an  actual  system  of 
laws,  but  merely  a  prescript  in  abeyance. 

The  institution  is  the  opposite  of  subjective  con- 
ception, individual  disposition  and  mere  personal 
bias.  The  institution  im})lies  organic  action.  In 
this  lies,  not  only  its  capacity  of  perpetuating  prin- 
ciples and  of  insuring  continuous,  homogeneous  and 
expansive  action,  but  also  its  great  power,  its  gran- 
deur, its  blessing,  its  danger  and  its  curse,  according 
to  its  original  character  and  its  inherent  principle. 
Christ  imprinted  on  his  church  the  missionary  cha- 
racter, and  from  the  apostles  to  the  servants  of  the 
gospel  who  lately  starved  near  Cape  Horn,  the  insti- 
tution of  the  missionary  ministry  has  been  the  pio- 
neer and  handmaid  of  extending  civilization.  But 
if  the  institution  is  intrinsically  bad,  or  contains 
vicious  principles,  it  lends  additional  and  I'earful 
power  to  the  evil  element  within  it,  an<l  gives  a  pro- 
portionate scope  to  its  calamitous  influence.  If  it  be 
established  in  a  sphere  in  which  the  subjective  ought 
to  prevail,  it  becomes  a  fearful  curse  when  it  makes 
the  objective  prevail  more  than  is  desirable,  or  when 
it  makes  the  annihilation  of  individuality  and  per- 
sonality in  general  one  of  its  very  objects.  The 
gigantic  institution  of  the  Society  of  Jesus,  and  some 
of  the  modern  Trade's  Unions  are  impressive  and 
amazing  examples. 

Whenever  men  allow  themselves  to  glide  into  the 
belief  that  moral  responsibility  can  be   aught  else 


340  ON  CIVIL  LIBERTY 

than  individual,  and  that  responsibility  is  divisible, 
provided  many  perform  but  one  act ;  whenever  the 
esprit  du  corps  prevail  sover  the  moral  consciousness 
of  man,  which  is  inseparable  from  his  individuality, 
the  institution  gives  a  vigor  to  that  which  is  unhal- 
lowed and  unattainable  by  the  individual.  The 
institution  is,  like  every  union  of  men,  subject  to  the 
all-pervading,  elementary  law  of  moral  reduplication, 
as  I  have  called  it  on  previous  occasions,  and  which 
consists  in  this,  that  any  number  of  united  indi- 
viduals, moved  by  the  same  impulse,  conviction  or 
desire,  whether  good  or  bad — whether  scientific, 
aesthetic  or  ethical,  patriotic  or  servile,  self-sacrificing 
or  self-seeking — will  countenance  and  impel  each 
other  to  far  better  or  far  worse  acts,  and  will  develop 
in  each  other  the  powers  for  the  specific  good  or 
evil,  in  a  far  greater  extent,  than  would  have  been 
possible  in  each  separate  individual.  It  is  the  law 
which  is  illustrated  by  the  excellence  of  whole  pe- 
riods in  one  particular  sphere;  by  the  rapid  deca- 
dence of  nations  when  once  their  fall  begins  ;  by  the 
lofty  character  of  some  times,  and  by  the  terrible 
effect  of  indiscriminate  imprisonment ;  by  the  power 
of  example ;  by  the  silliness  which  at  times  pervades 
whole  classes  or  communities ;  by  the  sublime,  calm 
heroism  on  board  a  sinking  man-of-war,  and  at 
other  times  by  the  panic  of  large  masses.  It  is  the 
universal  law  of  mutual  countenance  and  excitement. 
If  an  institution  is  founded  on  a  vicious  principle, 
or  if  a  bad  impulse  has  seized  it  for  a  time,  it  mil 
not  only  add  to  the  evil  force,  according  to  the 
general  law  of  moral  reduplication,  but  lend  addi- 


AND  SELF-GOVERNMENT.  841 

tional  strength  by  the  force  of  its  organization  and 
the  continuity  of  its  action.  Members  of  an  institu- 
tion will  do  that  which,  as  individuals,  they  would 
never  have  possessed  the  immoral  courage  of  perpe- 
trating. They  will  deny  the  obligation  of  paying 
what  is  due  to  widows  and  orphans,  in  cases  which 
would  have  made  them  look  upon  the  denial  as  dis- 
gTaceful,  had  they  acted  in  their  own  individual 
cases.  Thousands  who  have  committed  acts  of  cry- 
ing cruelty  as  members  of  the  llol}^  Office  would  not 
have  been  capable  of  committing  them  individually. 
The  institution  in  these  cases  has  the  same  effect 
which  all  united  and  continuous  action  has. 

On  the  other  hand,  institutions  have  been  able,  for 
the  same  reason,  to  resist  iniquitous  inroads,  or  its 
members  have  been  wrought  up  to  a  manly  de- 
votion, when  the  individual  would  not,  often  at 
least  could  not,  have  resisted.  In  almost  all  cases 
of  an  invasion  of  rights  by  one  of  the  domestic 
powers,  we  find  that  some  institution  has  formed 
the  breakwater  against  the  rushing  tide  of  power. 
There  are  many  instances,  such  as  the  "Case 
of  the  Bishops"  under  James  the  Second,  and  the 
rejoicing  of  tlie  better  disposed  Frenchmen,  when 
lately  the  court  of  Paris  declared  itself,  although  in 
vain  as  it  turned  out,  competent  to  judge  of  the  sjio- 
liation  which  the  dictator  had  decreed  against  the 
Orleans  family,  which  show  how  instinctively  men 
look    toward  institutions  ibr  support  and   j-olitifal 

salvation. 

I  have  purposely  restricted  my  remarks  on  the 
resisting  force  of  institutions  to  cases  of  invusiou 
29* 


342  ON  CIVIL  LIBERTY 

by  domestic  powers.  When  foreign  invaders  trample 
upon  rights  and  grind  down  a  people,  something 
different  and  sharper  is  required  to  rouse  them,  to 
electrify  them  into  united  resistance.  Humanity  it- 
self must  be  stung,  an  element  in  man's  very  nature 
must  be  offended,  so  that  the  most  patient  cannot  en- 
dure it  any  longer.  We  find,  therefore,  that  innu- 
merable popular  risings  against  foreign  oppressors, 
in  antiquity  and  modern  times,  have  taken  place, 
when  the  overbearing  oppressor,  having  gone  all 
lengths,  at  last  violates  a  wife  or  a  daughter.  That 
at  length  comes  home  to  the  most  torpid  heart,  and 
will  not  be  borne  by  the  veriest  slave. 

We  investigate,  here,  the  nature  of  the  institution 
in  general.  Like  everything  possessing  power,  it 
may  serve  for  weal  or  woe,  as  we  have  seen.  Con- 
stituted evil  is  as  much  worse,  as  constituted  good 
is  more  efl&caciously  good  than  that  effected  by 
the  individual.  When  we  know  the  essential  na- 
ture of  the  Institution,  we  shall  be  able  to  judge 
when,  and  where,  and  how  it  may  be  used  bene- 
ficially. An  institution  is  an  arch;  but  there  are 
arches  that  support  bridges,  and  cathedrals,  and 
hospitals ;  and  others  that  supj:)ort  dungeons,  ban- 
quet rooms  of  revelry,  torture  chambers,  or  spacious 
halls  in  which  criminal  folly  enacts  a  melancholy 
farce  vnth  all  the  pitiful  trappings  of  unworthy  sub- 
mission. 

The  greater  or  less  degree  in  which  the  institu- 
tional spirit  of  different  nations  is  manifested  fur- 
nishes us  with  a  striking  characteristic  of  whole 
nations.  The  Eomans,  the  Netherlanders,  and  in- 
deed all  the  Teutonic  tribes,  until  the  dire   spirit 


AND  SELF-GOVERNMENT.  843 

of  (lis-individuallzin*^  centralization  seized  nearly 
all  the  governments  of  the  European  continent, 
were  institutional  nations.  The  English  and  our- 
selves arc  still  so.  The  Eussians  and  all  the  Scla- 
vonic nations,  the  Turks  and  the  Mongolian  tribes, 
seem  to  be  remarkably  uninstitutional. 

A  similar  remark  naturally  a]i[)lies  to  different 
species  of  governments.  Some  do  not  only  result 
from  a  decidedly  institutional  tendency  of  the  peo- 
ple at  large,  but  they  also  promote  it,  while  there  is 
in  others  an  inherent  antagonism  to  the  institution. 
No  absolutism,  whether  that  of  one  or  many,  brooks 
institutions.  The  reason  is  not  only  because  all  ab- 
solute rulers  discountenance  opposition,  but  be- 
cause there  is  in  every  despotism  an  ingrained  in- 
compatibility with  independent  action  and  seli'- 
government,  in  whatsoever  narrow  circle  or  mode- 
rate degree  it  may  strive  to  maintain  itself.  This 
is  so  much  the  case  that  often  despots  of  the  best 
intentions  for  the  welfare  of  the  peoide  have  been 
the  most  destructive  to  the  remnants  of  former,  or 
or  to  the  germs  of  future  institutions,  in  the  very  pro- 
portion in  which  they  have  been  gifted  with  brilliant 
talents,  activity  and  courage.  These  served  them 
only  to  press  forward  more  vigorously  and  more 
boldly  in  the  career  of  all  alisolutism,  which  consists 
in  the  absorption  of  individuality  and  institutional 
action,  or  in  levelling  everything  which  does  not 
com})ort  with  a  military  uniformity,  ami  with  sweep- 
in"-  annihilation  of  diversitv. 

As  institutions  may  be  good  or  bad,  so  may  thoy 
be  favorable  or  unfavorable  to  liberty.  They  may 
indctMl   o-ivc  to  tlu'  rciuvsentnlive  of  ilic   institution 


344  ON  CIVIL  LIBERTY 

great  freedom,  but  only  for  the  repression  of  general 
freedom.  The  viziership  is  an  institution  all  over 
Asia,  and  has  been  so  from  remote  periods,  but  it  is 
an  institution  in  the  spirit  of  despotism,  and  forms 
an  active  part  of  the  pervading  system  of  Asiatic 
monarchical  absolutism.  The  star  chamber  was  an 
institution,  and  gave  much  freedom  of  action  to  its 
members,  yet  the  patriots  under  the  Stuarts  made 
it  their  first  business  to  break  down  this  preposterous 
institution.  When  in  1660  the  Danes  made  their 
king  hereditary  and  absolute,  binding  him  by  the 
only  oath  that  he  should  never  allow  his  or  his  suc- 
cessors' power  to  be  restricted,  the  Danish  crown 
became  undoubtedly  a  new  institution,  but  assuredly 
not  23ropitious  to  liberty.  Of  all  the  Hellenic  tribes 
the  Spartans  were  probably  the  most  institutional, 
but  they  were  communists,  and  communism  is  hos- 
tile to  liberty.  They  dis-individualized  the  citizens, 
and,  as  a  matter  of  course,  extinguished  in  the  same 
degree  individual  liberty,  development  and  pro- 
gress. A  state  in  which  a  citizen  could  be  punished 
because  he  had  added  one  more  to  the  commonly 
adopted  number  of  lute  strings,  cannot  be  allowed 
to  have  been  favorable  to  liberty. 

Many  of  those  very  attributes  of  the  institution 
proper,  which  make  it  so  valuable  in  the  service  of 
liberty,  constitute  its  inconvenience  and  danger 
when  the  institution  is  used  against  it.  It  is  a  bul- 
wark, and  may  protect  the  enemy  of  liberty.  It  is 
like  the  press.  Modern  liberty  or  civilization  can- 
not dispense  with  it,  yet  it  may  be  used  as  its 
keenest  enemv- 


AXD  SELF-GOVERNifEXT.  345 


CHAPTER    XXVI. 

THE  INSTITUTION,  CONTINUED.     INSTITUTIONAL  LIIIKU- 
TY.     INSTITUTIONAL  LOC.\L  SELF-GOVERNMENT. 

Civilization,  so  closely  connected  with  what  we 
love  in  modern  liberty,  as  well  as  jirogress  and  se- 
curity, themselves  ingredients  of  civil  liberty,  stands 
in  need  of  stability  and  continuity,  and  these  cannot 
be  secured  without  institutions.  This  is  the  reason 
why  the  historian,  when  speaking  of  such  organizers 
or  refounders  of  their  nations  as  Charlemagne, 
Alfred,  Numa,  Pelayo,  knows  of  no  higher  name  to 
give  them  than  that  of  institutors. 

The  force  of  the  institution  in  imparting  stability 
and  giving  new  power  to  what  otherwise  mvLst 
have  SAWftly  passed  away,  has  been  illustrated  in  our 
own  times  in  mormonism.  Every  observer  who  luus 
gravely  investigated  this  rejndsive  fraud  will  agree 
that  as  for  its  pretensions  and  doctrines  it  nuist  have 
passed  as  it  came,  had  it  not  been  lor  the  remarka])lo 
character  which  Joseph  Smith  pos.«?cssed  as  nn  insti- 
tutor.*    Thrice  blessed  is  a  noble  idea,  perpetuated  in 


'  Tlic  great  ability  of  tliis  man  seems  to  be  peculiarly  exhibited 
in  his  mixture  of  truth  anil  arrant  fulschoo<l,  his  unc»m|>ri>mi«ng 
boldness  and  insolence,  and  his  organizing  instituting  niind.     Two 


346  ON  CIVIL  LIBERTY 

an  active  institution,  as  charity  in  a  liotel-dieu ; 
thrice  cursed,  a  wicked  idea  embodied  in  an  institu- 
tion. 

The  title  of  institutor  is  covetod  even  by  those 
who  represent  ideas  the  very  opposite  to  institu- 
tions. 

Louis  Napoleon  Bonaparte,  when  he  lately  in- 
augurated his  government,  dwelt  with  pride,  or  a 
consciousness  that  the  world  prizes  the  founding  of 
good  institutions  as  the  greatest  work  of  a  statesman 
and  a  ruler,  on  the, "  institutions"  he  had  established.^ 


men  have  met  almost  simultaneously  with  great  success,  in  ova-  own 
times — Joseph  Smith  and  Louis  Napoleon.  Of  the  two  the  first 
seems  the  more  clever.  He  would  almost  reap  all  the  praises  which 
Machiavelli  bestows  upon  the  founder  of  a  new  empire.  And  he  did  it 
against  all  chances,  without  any  assistance  from  tradition  or  prestige. 
Whether  he  be  also  the  worse  of  the  two  will  not  be  hastily  pro- 
noimced  by  a  careful  inquirer. 

2  He  meant,  of  course,  the  senate,  legislative  corps,  and  the  council 
of  state.  Why  he  calls  these  new  institutions  no  one  else  can  see, 
but  he  evidently  wishes  to  indicate  his  own  belief,  or  desired,  that 
others  should  believe,  in  their  permanency,  as  well  as,  perhaps,  in 
some  degree  in  their  own  independent  action.  To  those,  however,  who 
consider  them  as  nothing  more  than  the  pared  and  curtailed  remnants 
of  former  institutions,  who  do  not  see  that  they  can  enjoy  any  inde- 
pendent action  of  their  own,  and  are  aware  that  their  very  existence 
depends  upon  the  mere  forbearance  of  the  executive ;  who  remember 
their  origin  by  a  mere  decree  of  a  dictator  whose  very  power  by  which 
he  established  them  bears  witness  that  he  considers  himself  bound 
by  no  superior  law,  aud  who  at  any  time  may  decree  their  cessation — 
to  those  who  know  with  what  studied  and  habitual  sneer  "parlia- 
mentary governments"  are  spoken  of  by  the  ruling  party  in  France, 
•ill  these  establishments  appear  in  principle  no  more  as  real  insti- 
tutions than  a  tent  on  a  stage,  the  outpost  of  an  army,  or  the 
clerk's  office  on  board  of  one  of  oiu-  steamboats. 


AND  SELF-GOVERNMENT.  347 

Institutions  may  not  have  been  viciously  conceived, 
or  have  grown  out  of  a  state  of  violence  or  crime, 
and  yet  they  may  have  become  injurious  in  the 
course  of  time,  as  incompatible  with  the  pervading 
spirit  of  the  time,  or  they  may  have  become  hollow, 
and  in  this  latter  case  they  are  almost  sure  to  be  in- 
jurious. Hollow  institutions  in  the  state  arc  much 
like  empty  boxes  in  an  ill-managed  house.  They 
are  sure  to  be  filled  with  litter  and  rubbish,  and  to 
become  nuisances.  But  great  wisdom  and  caution 
are  necessary  to  decide  whether  an  institution  ought 
to  be  amputated  or  not,  because  it  is  a  notable  truth 
in  pohtics  that  many  important  institutions  and 
laws  are  chiefly  efficient  as  preventives,  not  as  posi- 
tive agents.  It  is  not  sufficient,  therefore,  that  at  a 
glance  we  do  not  discover  any  pal}»able  good  pro- 
duced by  the  institution,  to  justify  us  in  setting 
about  lopping  it  off.  Antiquity  is  ju'ima  facie  evi- 
dence in  favor  of  an  institution,^  and  must  not  rashly 
be  confounded  with  obsoleteness;  but  anti(iuity  is 
certainly  no  proof  against  positive  and  grounded 
arguments.  On  the  other  hand,  hollow  institutions 
have  frequently  the  serious  inconvenience  of  decciv- 


3  I  am  aware  that  many  persons  believe  nowmlnys  so  little  in 
this  truth  that  not  only  docs  antitiuity  of  itself  ajipenr  to  theiii  as 
a  proof  of  deficiency,  but  they  turn  their  face  from  the  whole 
Past,  as  something  to  be  shunned,  tlius  forgetting  the  continuity  of 
society,  progress  and  civilization.  Mr.  Guizot,  in  his  lecture.i  on 
the  History  of  Representative  Governments,  delivered  iu  Paris, 
1820,  found  it  necessary  to  warn  his  hearers  agiiinst  this  bormr  of 
the  past.  The  reader  will  find  remarks  on  the  impossibility  of 
"beginning  entii'cly  anew,"  in  my  Political  Kthics. 


348  ON  CIVIL  LIBERTY 

ing  and  changing  the  proper  venue,  as  lawyers 
would  express  it.  The  form  of  a  representative 
government,  without  the  spirit,  true  principles  and 
sincere  guarantees  of  self-government  in  that  body, 
or  without  being  founded  upon  a  candid  and  real 
representation,  is  worse  than  a  government  without 
these  forms,  because  it  eases  the  executive  of  the  re- 
sponsibility which  without  that  hollow  form  would 
wholly  rest  on  it.  But  here,  again,  it  is  necessary  to 
observe  that  an  institution  may  for  a  time  become  a 
mere  form,  and  yet  that  very  form  may  soon  be  ani- 
mated again  by  a  proper  spirit.  Parliament  under 
Henry  the  Eighth  had  become  a  subservient  tool, 
highly  noxious  because  it  formally  sanctioned  many 
atrocious  measures  of  the  king.  Yet,  it  was  that 
same  parliament  which  rose  to  action  and  import- 
ance within  fifty  years,  and  within  a  century  and  a 
half  became  the  virtual  seat  of  government  and  su- 
preme power  in  the  state.  There  is  hardl}''  a  species 
of  penal  trial  which  has  not  at  times  and  for  an  en- 
tire period  been  abused ;  yet  the  existence  of  this 
very  trial,  intended  to  rest  on  the  principle  of  inde- 
pendence, became  in  a  better  period  the  starting- 
point  of  a  new  order  of  things. 

We  must  also  mention  the  fact  that  there  are  pe- 
rennial and  deciduous  institutions,  or  institutions 
avowedly  fit  only  for  a  preparatory  state  of  civiliza- 
tion. Their  of&ce  is  limited  in  time  like  that  of  the 
deciduous  teeth,  which  must  be  drawn  if  they  do  not 
fall  out  of  themselves,  or  resist  too  obstinately  their 
perennial  substitutes. 

We  may  here  close  ovir  general  remarks  on  insti- 


I 
AND  SELF-GOVERNMENT.  84'.» 

tutions,  and  investigate  in  what  the  force  of  thi*  in- 
stitution consists,  when  wisely  taken  into  the  service 
of  liberty,  and  in  what  instituti(jnal  selt'-<jovt'riinuMit 
consists  in  particular. 

By  institutional  self-government  is  meant  that 
popular  government  which  cousistij  in  a  great  or- 
ganism of  institutions  or  a  union  of  harmonizing 
systems  of  laws  instinct  with  self-government.  It  is 
essentially  of  a  co-operative  or  hamacratic  character, 
and  in  this  respect  the  opposite  to  centrnlism.  It  is 
articulated  liberty,  and  in  this  regard  the  opposite  to 
an  inarticulated  government  of  the  majority.  It  is 
of  an  inter-guarantceing,  and,  conse^iuently,  inter- 
limiting  character,  and  in  this  aspect  the  negation  of 
absolutism.  It  is  of  a  self-evolving  and  genetic  na- 
ture, and  in  this  respect  is  contradistinguishetl  from 
governments  founded  on  extra-popular  prineiples,such 
as  divine  right.  Finally,  in.stitutional  self-goveniment 
is,  in  the  opinion  of  our  triln*,  and  according  to  our 
experience,  the  only  practical  self-government,  or  self- 
government  carried  out  in  the  realities  of  life,  and  i« 
thus  the  opposite  of  a  vague  or  theoretical  liberty, 
which  proclaims  abstractions,  but,  in  reality,  cannot 
disentangle  itself  from  the  des])Otism  of  one  i>art  over 
another,  however  permanent  or  changing  thf  ruling 
part  may  be. 

Institutional  self-government  is  tlie  p'-nH'-u  (in- 
bodiment  of  self-reliance  and  mutual  acknowledg- 
ment of  self-rule.  It  is  in  thi.s  view  the  |)olitical 
realization  of  erpudity. 

Institutional  ."^^If-government  is  the  only  self- 
VOL.  I. — 30 


I 
350  ON  CIVIL  LIBERTY 

government  wliicli  makes  it  possible  to  be  at  once 
seZ/"-government  and  self- govermnent. 

According  to  the  Anglican  view,  institutional  self- 
government  consists  in  the  fact  that  all  the  element- 
ary parts  of  the  government,  as  well  as  the  highest 
and  most  powerful  branches,  consist  in  real  institu- 
tions, with  all  the  attributes  which  have  been  as- 
cribed to  an  institution  in  the  highest  sense  of  the 
term.  It  consists,  farther,  in  the  unstinted  freedom 
and  fair  protection  whidh  are  granted  to  institutions  of 
all  sorts,  commercial,  religious,  cultural,  scientific, 
charitable  and  industrial  to  germinate  and  to  grow — 
provided  they  are  moral  and  do  not  invade  the  equal 
rights  of  others.  It  receives  its  aliment  from  a  per- 
vading spirit  of  self-reliance  and  self-respect — the  real 
afflatus  of  liberty. 

It  does  not  only  require  that  the  main  functions  of 
the  government — the  legislative,  the  judicial  and  the 
executive — be  clearly  divided,  but  also  that  the  legis- 
lature and  the  judiciary  be  bona  fide  institutions. 
The  first  French  constituent  assembly  pronounced 
the  separation  of  the  three  powers,  and  was  obliged 
to  do  so,  since  it  intended  to  demolish  the  absolutism 
which  had  grown  up  under  the  Bourbons ;  but  so 
long  as  there  existed  an  absolute  power,  no  matter  of 
what  name,  that  could  dictate,  liberty  was  not  yet 
obtained.  Indeed,  it  may  be  said  that  a  real  division 
of  power  cannot  exist,  unless  the  legislature  and  the 
judiciary  form  real  institutions,  in  our  sense  of  the 
term. 

These  institutions,  again,  consist  of  many  minor 
institutions,  as  an  organism  consists  of  many  minor 


AND  SELF-QOVERXYEXT.  351 

ones.  Our  congress  is  a  real  institution,  but  its  com- 
ponent parts,  the  senate  and  house  of  representatives, 
are  its  constituent  institutions,  and  the  whole  is  in 
close  connection  Avith  other  real  institutions,  for  in- 
stance the  state  legislatures,  or  it  depends  upon  other 
institutions,  for  instance  the  common  law. 

Yet  the  self-government  of  our  country  or  of 
England  would  he  considered  by  us  little  more  than 
oil  floating  on  the  surface  of  the  water,  did  it  consist 
only  in  congress  and  the  state  legislatures  with  os, 
and  in  parliament  in  England.  Self-government,  to 
be  of  a  penetrative  character,  requires  tlic  institu- 
tional self-government  of  the  county  or  district ;  it 
requires  that  everything  which,  without  general  in- 
convenience, can  be  left  to  the  circle  to  whicli  it  be- 
longs, be  thus  left  to  its  own  management;  it  consists 
in  the  presenting  grand  jury,  in  the  petty  jur}^,  in  the 
fact  that  much  which  is  called  on  the  Europciin  con- 
tinent the  administrative  branch,  be  left  to  the  })eo- 
pie.  It  requires,  in  one  word,  all  the  local  aj)j)liunce8 
of  government  which  are  termed  local  self-govern- 
ment;''  and  Niebuhr  says  that  British  liberty  de- 


*  T.  Toulmin  Smith's  Local  Sclf-govcniracnt  ai»"l  Ceutraliiatiuii, 
&c.     London,  I80I. 

A  work  which  many  of  my  readers  will  peruse  with  intorcat  and 
instruction  is  Ferdinand  Ri^chnrd's  Lois  Municipalcs  dca  lU-piib- 
liqucs  de  la  Swisse  ct  dcs  Etuts-Unis,  Paris.  IH.'.l'.  Mr.  Bochard 
is  also  the  author  of  a  Traite  de  rAdministrution  IntZ-ricurr  dc  U 
France— a  work  which  must  he  welcome  U>  every  in.|uirinK  ciliicn. 
because  it  pictures  the  details  of  Frencii  coninili/.nti.>n.  |.roUblj 
the  most  consistently  carried  out  centrulizafion  in  existoncp. 

Mr.  B6chard  uses  repeatedly  in  his  Krencii  work  ti»o  English 
term  Self-government. 


352  ON  CIVIL  LIBERTY 

pends  at  least  as  much  on  these  as  on  parliament, 
and  in  contradistinction  to  them  he  calls  the  govern- 
ments of  the  continent  Staats-Regierungen  (state 
governments,  meaning  governments  directing  all  de- 
tail by  the  general  and  supreme  power)/ 

It  must  be  in  view  of  this  local  self-government, 
combined  with  parliamentary  freedom,  that  sir  Ed- 
ward Coke  said  of  the  Justice  of  the  Peace :  "It  is 
such  a  form  of  subordinate  government  for  the 
tranquillity  and  quiet  of  the  realm  as  no  part  of  the 
christian  world  hath  the  like,  if  the  same  be  duly 
executed.'"' 


^  A  German  work,  the  translated  title  of  which  is :  An  Account 
of  the  Internal  Administration  of  Great  Britain,  by  Baron  de  Vincke, 
edited  by  B.  G.  Niebuhr.  Berlin,  1815.  Nicbuhr,  who  had  spent 
a  part  of  his  early  manhood  in  England,  published,  and  probably 
modelled  in  a  great  measure,  this  work  in  order  to  influence,  if 
possible,  the  Prussian  govei-nment,  to  reorganize  the  state  after 
the  expulsion  of  the  French,  and  to  reclaim  that  kingdom  from  the 
centralization  it  had  adopted  in  many  respects  from  the  invaders  of 
Germany.  Niebuhr  was  a  follower  and  great  admirer  of  baron  de 
Stein,  who,  when  minister  of  Prussia,  had  given  to  the  cities  some 
degree  of  self-government  by  his  Stadte-Ordnung — causing  not  a  lit- 
tle umbrage  to  Napoleon.  Niebuhr  desired  to  give  increased  life 
to  the  principles  contained  in  the  Cities'  Charter,  when  he  published 
the  work  I  have  mentioned. 

8  Coke's  Institutes,  part  10,  ch.  xxi.  Justices  of  the  Peace. 
The  earl  of  Strafford,  who,  like  his  royal  master,  died  so  well,  after, 
politically  speaking,  having  lived  so  ill,  bade  his  brother,  on  the 
scaffold,  to  take  this  among  other  messages  to  his  eldest  son: 
"  AVish  him  to  content  himself  to  be  a  servant  to  his  country,  as  a 
justice  of  the  peace  in  his  county,  not  aiming  at  higher  prefer- 
ment." May  12,  1641.  Rushworth  (who  was  on  the  scaffold), 
vol.  viii.  p.  760.  George  Washington,  after  having  aided  in  foiind- 
ing  a  great  commonwealth,  and  after  having  been  twice  its  chief 


AND  SELF-GOVERNMENT.  353 

Anglican  self-government  rec^uircs  that  every  in- 
stitution of  local  self-government  shall  have  the  right 
to  pass  such  by-laws  as  it  finds  necessary  for  its'  own 
government,  without  obtaining  the  consent  of  any 
superior  power,  even  that  of  the  cro\\'n  or  jiarliament, 
and  that  of  course  such  by-laws  shall  stand  good  in  the 
courts  of  law,  and  shall  be  as  binding  upon  every  one 
concerned  as  any  statute  or  law.  I  believe  that  it  is  in 
the  Anglican  system  of  liberty  alone,  that  by-laws  are 
enacted  and  have  full  force  without  consent  of  supe- 
rior power.  There  are  in  other  countries  cxi-eptiun.'?, 
but  they  are  rare  indeed,  and  very  limited  in  i>o\ver, 
while  the  by-law  is  the  ride  in  our  system.  Tlie 
whole  subject  of  the  by-law  is  characteristic  and  im- 
portant, and  stands  out  like  the  comprehensive  and 
peculiar  doctrine  of  the  Anglican  warrant.  The 
character  of  self-government  is  moreover  manifested 
by  the  fact  that  the  right  of  making  by-laws  is  not 
derived  from  any  grant  of  superior  power,  but  has 
been  ever  considered  in  the  English  iK)lity  a-s  in- 
herent in  the  local  community — a  natural  right  of 
the  freemen.  Coke  says,  with  reference  to  these  laws 
and  their  force :  "  Of  more  force  is  the  agreement  of 
the  folk  and  people  than  the  grant  of  the  king ;"' 
and  in  another  place  he  says :  "  The  inhabiUanti^  of  a 
town,  without  any  custom,  may  make  ordinances  or 
by-laws  for  any  such  thing  which  is  for  the  gciu-ral 


mafjistrate,  was  a  ju^itico  of  the  peace  in  his  c<»inty,  in  wliicli  he 
was  imitated  by  Jolin  Adams,  and.  ]icrha|is.  liy  Diimy  of  tlie  other 
cx-prcsi<lents. 

''  8  Reports,  p.  12'). 


354  ON  CIVIL  LIBERTY 

good  of  the  public,^  unless  indeed  it  be  pretended 
by  any  sucb  by-law  to  abridge  the  general  liberty 
of  the  people,  their  inherent  birthright,  assured  to 
all  by  the  common  law  of  the  whole  land,  and  which 
that  common  law,  in  its  jealous  regard  for  liberty, 
does  not  allow  to  be  abrogated  or  lessened  even  by 
their  own  consent — much  less,  therefore,  by  the  con- 
sent of  their  delegates  in  parliament."^ 

It  may  be  added  that  by-law  does  not  mean,  as 
many  suppose,  additional  law,  law  by  the  side  of  an- 
other or  complementary,  but  it  means  law  of  the  place 
or  comm\inity,  law  of  the  bye  or  pye,  that  is  of  the 
collection  of  dwellers,  or  of  the  settlement  as  we,  in 
America,  perhaps  would  most  naturally  express  it.'° 


^  5  Reports,  p.  63. 

9  Ibid.    p.  64. 

'°  See  Smith's  Local  Self-government,  page  230.  The  quota- 
tions from  Coke  to  which  the  three  last  notes  refer  are  likewise 
in  Smith's  work,  which  I  recommend  to  every  reader. 

By,  in  by-law,  is  the  same  syllable  with  which  the  names  of  many 
English  places  end,  such  as  Derby,  Whitby,  and  is  etymologically 
the  same  with  the  German  Baueu  (to  build,  to  settle,  to  cultivate), 
which  is  of  the  same  root  with  the  Gothic  Bua  and  Boo,  and  espe- 
cially the  frequentative  Bygga,  aedificare.  See  Adelung  ad  verbum 
Bauen.  It  is  a  word  which  runs  through  all  the  Teutonic  languages, 
ancient  and  modern. 

Gradually,  indeed,  bye-laws  came  to  signify  laws  for  a  limited 
circle,  a  small  society,  laws  which  any  set  of  men  have  the  right  to 
pass  for  themselves  within  and  under  the  superior  law,  charter, 
&c.,  which  constitutes  them  into  a  society,  and  thus  it  happened 
that  bye-law  was  changed  into  by-law,  as  we  have  by-ways,  roads 
by  the  side  of  others.  It  cannot  be  denied  that  by-law  at  present 
is  used  in  the  sense  of  law  passed  by  the  side,  as  it  were,  of 
another  and  main  law.  Very  few  persons  know  of  the  origin, 
and  the  present  sense  of  by-law  is  doubtless  that  of  collateral, 


AND  SELF-GOVERNMENT.  355 

expletive  or  subordinate  law.  Such  double  derivations  arc  not  un- 
common in  our  language.  The  scholar  is  probably  reminded,  by 
this  note,  of  the  term  God,  which  we  christians  derive  from  good, 
and  a  better,  holier  derivation,  as  to  the  sense  of  the  word,  we 
cannot  give  to  it;  yet  the  historical  derivation,  the  i-eriuf  etymology 
if  I  might  so  say,  is  an  entirely  different  one.  See  Jacob  Grimm's 
German  Mythology,  ad  verbum  Gott.  The  stiirting-point  of  adora- 
tion is,  with  all  tribes,  dread,  acknowledgment  of  superior  power ; 
then  follows  acknowledgment  of  wisdom,  and  last  of  all  acknow- 
ledgment of  goodness,  purity,  holiness. 


END   OF   VOL.    I. 


'JNIVF''  =  ''T'V  ^' 


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